Olga J. Fox v. The Eaton Corporation

CELEBREZZE, Circuit Judge,

dissenting.

With due deference to the views of the majority, I must respectfully dissent.

I adhere to the principles articulated by this court in Leake v. University of Cincinnati, 605 F.2d 255, 259 (6th Cir. 1979), that “Title VII time limitations are jurisdictional in the sense that that phrase is used in relation to statutes of limitations and equitable principles should apply in circumstances which warrant their application.” I disagree, however, with the majority view that the present case justifies the exercise of such equitable power and the tolling' of the 90-day time period.

In my view, the factual context of Leake, supra, justifying the tolling of the time limitations is eminently distinguishable from the present case. In Leake , we held that affirmative representations by an employer which cause an employee to delay filing his discrimination charges with the EEOC are sufficient equitable considerations to justify a tolling of the time periods. In the present case, we have no such “foul play” on the employer’s behalf which should preclude him from raising the time period defense.

It is well established that the tolling of statutory periods on equitable grounds is usually very much restricted. International Union of Electrical Radio and Machine Workers, Local 790 v. Robbins & Myers, Inc., 429 U.S. 229 , 97 S.Ct. 441 , 50 L.Ed.2d 427 (1976); Geromette v. General Motors Corp., 609 F.2d 1200 (6th Cir. 1979). In Robbins & Myers, the Supreme Court implied that tolling might be appropriate only where the defendant has actively misled the plaintiff respecting the cause of action, where plaintiff has in some extraordinary way been prevented from asserting his rights, or where the plaintiff has raised the precise statutory claim in issue in a court of competent jurisdiction but has mistakenly done so in a state court without proper venue. Id. 429 U.S. at 237 n. 10, 97 S.Ct. at 447 n. 10 and accompanying text; Chappel v. Emco Machine Works Co., 601 F.2d 1295, 1302-03 (5th Cir. 1979); Smith v. American President Lines, Ltd., 571 F.2d 102, 109 (2d Cir. 1978).

From my reading of the record, I cannot conclude that the present case falls within any of the above instances. As already stated above, and the majority agrees, there is no evidence that defendant-appellee engaged in any conduct which resulted in appellant’s filing of her claim in state court. See ante n. 5, at 719. Additionally, the record is devoid of any evidence which would lead to the conclusion that appellant has in some extraordinary way been prevented from asserting her rights. Burnett v. New York Central R. Co., 380 U.S. 424, 429 , 85 S.Ct. 1050, 1055 , 13 L.Ed.2d 941 (1965); Osbourne v. United States, 164 F.2d 767 (2d Cir. 1947). Nor has appellant filed her claim in a state court of competent jurisdiction which did riot have proper venue over her claim. Burnett, supra, 380 U.S. at 426-36 , 85 S.Ct. at 1053-58 .

In Burnett , the Supreme Court was confronted with a tolling inquiry regarding the three-year statute of limitations under the Federal Employers’ Liability Act (FELA). In Burnett , the court held that where a timely FELA action is begun in a state court having jurisdiction, the defendant is served with process, and the case is dismissed for improper venue, the FELA time limitation is tolled during the pendency of the state suit. Our case is distinguishable from Burnett . The court in Burnett was careful to limit its holding to those instances where the state court clearly had concurrent jurisdiction, a situation which does not exist in the present case. In light of the policy that equitable grounds justifying tolling should be very restricted, in my view Burnett should not be extended to cover the instant case.

Since I find no equitable basis for the tolling of the 90-day time period, I would affirm the judgment of the district court.