failed to discharge its duty to give plaintiff adequate
representation with respect to his employment grievances. See
42 U.S.C. § 2000e et seq. Workers has filed a motion to dismiss
and Ludwig has filed a motion for summary judgment, both based
on alleged noncompliance with the statutory filing time
requirement of 42 U.S.C. § 2000e-5(e).
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.