The opinion of the court was delivered by: Marovitz, District Judge.
Motions to Dismiss and for Summary Judgment
The history of this cause is not in dispute. On August 13,
1970, the Equal Employment Opportunity Commission sent a
notification to plaintiff that he was authorized to institute
a civil action in federal court with respect to his claim
within thirty days of the receipt of the authorization.
Plaintiff received the authorization two days later.
Subsequently, on August 28, 1970, he filed a Petition for the
Appointment of Counsel and Waiver of the Payment of Fees, Costs
or Security, which was granted. The cause was assigned number
70 C 2149. By Minute Order dated September 15, 1970, counsel
was appointed to represent petitioner and the cause was
continued until October 14, 1970. The Complaint was filed on
November 2, 1970.
It is on the state of this record that defendants contend
that no civil action was commenced within the thirty day
statutory period. The applicable limitations statute provides,
"* * * the Commission shall so notify the person
aggrieved that a civil action may, within thirty
days thereafter, be brought against the respondent
named in the charge * * *." 42 U.S.C. § 2000e-5(e).
At least two cases have found that extenuating circumstances
justify a finding of compliance with the thirty day filing
period even though a formal complaint was not filed within that
time. Austin v. Reynolds Metals Co., 62 LC ¶ 9408. (E.D.Va.
1970); McQueen v. E.M.C. Plastic Co., 302 F. Supp. 881 (E.D.Tex.
1969). In the latter case, as in the instant situation,
plaintiff appeared in federal court within thirty days after
notification from the Commission to indicate a desire to
institute a suit and to secure counsel. In neither case was
counsel appointed by the court in time to file a complaint
within the statutory period. In McQueen, suit was not actually
filed for over two years after notice due to appointed
counsel's negative attitude toward the cause, a personal
tragedy which disrupted the attorney's entire legal practice,
and the death of the judge who appointed the attorney. Here
filing of a complaint within the thirty day period was rendered
virtually impossible by the court which scheduled appointment
of counsel for the last day of the time period. The Court in
McQueen found that "plaintiff was not dilatory in pursuing her
cause of action," that the application for counsel was
"manifestly an act designed to facilitate the filing of a
formal complaint," that the application was "the sole act over
which she had any effective control," and that it would be
unjust to "charge her with the lack of judicial supervision
over the case" which result from the unusual circumstances
mentioned previously. 302 F. Supp. at 884-885. To preclude
plaintiff from continuing with this cause will be similarly
unjust since the relevant delay was occasioned by the court.
In Austin, counsel was appointed and a complaint was filed
after the thirty day period expired, but the Court found that
under the circumstances "the dispute was fairly before (it)
before the thirty day period elapsed" since plaintiffs had
submitted correspondence to the Clerk of the Court with respect
to their unfair employment charge within the thirty days after
notice of right to sue. In doing so, the Court noted that
plaintiffs have not been barred by actions of the Commission
which make certain time compliances impossible, and that the
letter from the Commission to plaintiffs was ambiguous in
informing the allegedly aggrieved party of procedures by which
a suit could be instituted. Like the Court in Austin, we do not
believe that a party should be prejudiced and its cause
dismissed if it did what it was told to do in Commission's
instruction, i.e., come to the federal court for assistance
and the appointment of counsel. 62 LC at 6598.
While there are cases which rigidly hold to the thirty day
limitation, e.g., Goodman v. City Products Corp., 425 F.2d 702
(6th Cir. 1970), none presents the extenuating circumstances
such as found in Austin, McQueen, and here. Since this statute
"is designed to protect those who are least able to protect
themselves," Sciaraffa v. Oxford Paper Company, 310 F. Supp. 891,
898 (D.Me. 1970), and since plaintiff followed the
instructions in the Commission's letter and sought aid in
federal court within thirty days, since further delay was
occasioned by the court and beyond plaintiff's control, and
since there is no indication of any prejudice to either
defendant, we find that plaintiff's Complaint need not be
Defendants' motions to dismiss and for summary judgment are
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