The opinion of the court was delivered by: WALDMAN
Plaintiff is suing the Secretary of Veterans Affairs and two subordinate officials. She alleges that she was subjected to employment discrimination because of her sex, race, national origin and pregnancy respectively when she was denied adequate office facilities, light duty assignments and leave and "had no choice but to resign" from her position as a nurse coordinator on July 30, 1993. Plaintiff asks for $ 10 million in compensatory damages.
The government has moved to dismiss plaintiff's complaint under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction or alternatively under Rule 12(b)(6) for failure to state a cognizable claim. The motion is premised on the unamenability to suit of two of the three defendants and upon plaintiff's failure timely to pursue relief.
In addition to the Secretary, plaintiff has sued an assistant general counsel and acting regional director. In opposition to the motion, plaintiff argues that these officials "are both proper party defendants because each individual has issued and signed pertinent documents pertaining to" this civil action. The only proper party in a discrimination suit by a federal employee is the head of the agency in which the plaintiff was employed. See 42 U.S.C. § 2000e-16. Thus, defendants Lawson and Falast are entitled to have the claims against them dismissed.
Defendant Brown's motion is premised on a failure by plaintiff to lodge an administrative complaint within 45 days as required by 29 C.F.R. § 1614.105(a) or to present her complaint in this action within 90 days of receiving a final agency decision. See 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.408.
An aggrieved federal employee must initiate contact with an EEO counselor within 45 days of the alleged occurrence of discrimination. See 29 C.R.F. § 1614.105(a)(1). As the government acknowledges, the time limit for presenting an administrative complaint is not jurisdictional but rather is akin to a statute of limitations and thus subject to equitable tolling. See Zipes v. Trans World Airlines, 455 U.S. 385, 393, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982). The government argues that plaintiff has failed to make any allegation or showing of equitable considerations which could excuse her failure to comply with the 45 day requirement.
Prior to Irwin, the time requirement in § 2000e-16(c) for filing suit was held not to be jurisdictional in Hornsby v. U.S. Postal Service, 787 F.2d 87, 89 (3d Cir. 1986). The Court in Hornsby relied on Zipes and concluded that plaintiff's Title VII complaint should not have been dismissed under Rule 12(b)(1) in reliance on Brown v. General Services Administration, 425 U.S. 820, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976) because that case was "not on point" as "the Supreme Court did not address the question of whether a Title VII time limit was a matter that went to subject matter jurisdiction." Id. The Supreme Court in Brown did not expressly address the legal nature or ramifications of the time requirement for filing suit but did "hold, therefore, that since Brown failed to file a timely complaint under [§ 2000e-16(c)], the District Court properly dismissed the case." Brown, 426 U.S. at 835. In fact, the district court in Brown had dismissed the complaint, which was filed twelve days late, pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction. See Brown, 425 U.S. at 824. The issue in Zipes was whether the timely filing of an administrative charge is a jurisdictional prerequisite to suit. See Zipes, 455 U.S. at 392-93.
Irwin involved the timeliness of a Title VII court complaint. The Supreme Court in that case affirmed the dismissal of petitioner's Title VII complaint after concluding that it was fourteen days late and there was no basis for equitable tolling. The complaint in Irwin had been dismissed for lack of jurisdiction. Irwin arguably supports a Rule 12(b)(1) dismissal where a complaint is untimely and no equitable justification exists. Nevertheless, it is difficult to characterize as truly jurisdictional a requirement that may be modified for equitable reasons.
In view of what seems implicit in Irwin and is explicit in Hornsby, the court is constrained to reject the government's jurisdictional argument. This does not, however, end the inquiry.
If not literally jurisdictional, the time requirements in Title VII must be taken seriously. They are part of a carefully crafted statutory scheme reflecting a strong Congressional preference for resolving discrimination claims administratively through counselling and conciliation. See Alexander, 415 U.S. 36, 44, 39 L. Ed. 2d 147, 94 S. Ct. 1011; E.E.O.C. v. Great Atlantic & Pacific Tea Co., 735 F.2d 69, 73 (3d Cir.), cert. denied, 469 U.S. 925, 83 L. Ed. 2d 241, 105 S. Ct. 307 (1984). Compliance with Title VII administrative requirements, if not equitably excused, is a prerequisite to suit. See Hornsby, 787 F.2d at 90 (complaint fails to state Title VII claim unless it asserts compliance with administrative submission requirements).
Where it is apparent from the complaint and other matters to which a court may properly look in addressing a Rule 12(b)(6) motion that a discrimination plaintiff's claim is time-barred, it may be dismissed. See Oshiver v. Levin, Fishbein, Sechan & Berman, 38 F.3d 1380, 1384 n.1 (3d Cir. 1994). When a discrimination claim appears to be time-barred, the burden is on the plaintiff to assert or establish facts that justify equitable tolling. See Byers v. Follmer Trucking Co., 763 F.2d 599, 600-01 (3d Cir. 1985). In such ...