Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 86 C 72 -- James B. Parsons, Judge.
Cummings, Flaum, and Easterbrook, Circuit Judges.
The plaintiff, James Kontos, appeals from the district court decision dismissing his age discrimination complaint brought against the Department of Labor ("DOL") under the 1974 amendments to the Age Discrimination in Employment Act of 1967 ("ADEA"), which govern complaints initiated by federal employees. See 29 U.S.C. § 633a (1982). Specifically, the plaintiff challenges the district court's decision which denied him the opportunity, pursuant to 29 C.F.R. § 1613.214(a)(4)(i), to toll the deadline for filing his agency complaint. For the reasons stated below, we vacate the judgment of the district court and remand for further proceedings.
At the time of this employment dispute, the plaintiff was a fifty-eight year old safety specialist and mechanical engineer employed by DOL's Occupational Safety and Health Administration ("OSHA"). On July 22, 1982, the plaintiff applied for a position as OSHA's Assistant Regional Administrator for Technical Support in the Chicago Regional Office. In August, 1982, he was interviewed for the position by the Regional Administrator for OSHA, Alan McMillian. Later that month, the plaintiff learned that he was rejected as a candidate for the position in favor of a thirty-two year old applicant named Kenneth Yotz. He asserts the decision to deny him the promotion was motivated by his age in violation of the ADEA. As evidence of this claim, he states that McMillian told him over lunch about one year earlier that he wanted "young blood in the agency." On May 15, 1983, approximately nine months after the Yotz appointment was announced, the plaintiff filed an informal age discrimination complaint with the agency's Equal Employment Opportunity ("EEO") counselor pursuant to the procedures governing review of discrimination complaints by federal government employees. See 29 C.F.R. §§ 1613.211-.236 (1983).
This nine-month delay exceeded the thirty-day deadline set forth under 29 C.F.R. § 1613.214(a)(1)(i) for informing the employing agency of alleged discrimination.*fn1 The regulation precludes relief in cases in which the agency complaint is not timely filed.*fn2 However, the plaintiff argues that he is entitled to an extension of the thirty-day deadline under 29 C.F.R. § 1613.214 (a)(4) (i), which provides that the agency shall toll the filing requirements "when the complainant shows that he was not notified of the time limits and was not otherwise aware of them."
In support of this claim, the plaintiff first asserts that the agency failed to post notice of the filing requirement as required by 29 C.F.R. § 1613.204(f)(4).*fn3 The government does not dispute the plaintiff's assertion that there was no posting. The plaintiff next claims that he was not made "otherwise aware" of the filing requirement until December, 1983, when the DOL Office of Civil Rights ("OCR") (the office which investigates, mediates, and initially rules on the agency's civil rights complaints) informed him that the complaint was untimely. The plaintiff also claims that he was misled by the advice of certain DOL attorneys, who were not associated with OCR, and by the advice of certain co-workers, which resulted in the filing delay.
After the plaintiff received notice from OCR that the complaint was not timely filed, a hearing was held on the issue before the Director of OCR pursuant to 29 C.F.R. § 1613.217(a). The OCR ruled against the plaintiff and found that he had failed to make "reasonable efforts" to become aware of the filing requirements. For example, the agency noted that the plaintiff failed to contact his EEO counselor until about eight months after the Yotz appointment despite his knowledge of the identity of the counselors and of his general right to seek administrative relief. The agency did not make a finding as to whether the plaintiff was actually aware of the specific filing requirements. The agency decision was appealed to the Equal Employment Opportunity Commission Office of Review and Appeals ("Commission"), and OCR's ruling was summarily affirmed.
The plaintiff then filed suit in federal court where the tolling issue was raised in the government's motion to dismiss the plaintiff's complaint, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, for failure to file a timely agency claim. The district court held that the plaintiff's complaint was time-barred, thus depriving the court of subject matter jurisdiction over the suit. The court's decision, like the decision of the agency, rested on a finding that the plaintiff had failed to diligently pursue his claim.*fn4
In Sims v. Heckler, 725 F.2d 1143 (7th Cir. 1984), this court held, based on considerations of sovereign immunity, that the time limits for filing employment discrimination claims against the federal government create a prerequisite to federal court jurisdiction. See also Scott v. St. Paul Postal Service, 720 F.2d 524 (8th Cir. 1983), cert. denied, 465 U.S. 1083, 79 L. Ed. 2d 770, 104 S. Ct. 1453 (1984); Rice v. Hamilton Air Force Base Commissary, 720 F.2d 1082 (9th Cir. 1983); Stuckett v. United States Postal Service, 469 U.S. 898, 83 L. Ed. 2d 210, 105 S. Ct. 274 (1984) (White, J., and Rehnquist, J., dissenting from denial of petition for writ of certiorari). Contra McSwain v. Bowen, 814 F.2d 617 (11th Cir. 1987); Henderson v. United States Veterans Administration, 790 F.2d 436, 440 n.4 (5th Cir. 1986); Hornsby v. United States Postal Service, 787 F.2d 87 (3d Cir. 1986); Zografov v. Veterans Administration Medical Center, 779 F.2d 967 (4th Cir. 1985); Martinez v. Orr, 738 F.2d 1107 (10th Cir. 1984); Saltz v. Lehman, 217 U.S. App. D.C. 354, 672 F.2d 207 (D.C. Cir. 1982). In contrast, the filing requirements in suits against private sector employers are not considered jurisdictional. Zipes v. Trans World Airlines, 455 U.S. 385, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982); Mull v. Arco Durethene Plastics, 784 F.2d 284, 291 (7th Cir. 1986). As a result, the tolling provisions in private defendant cases operate more like a statute of limitations, and are thus subject to equitable defenses such as waiver, estoppel, and tolling. Zipes, 455 U.S. at 398.
Because the filing requirements at issue in this case are jurisdictional, it is the plaintiff's burden to establish that they have been met. Western Transportation Co. v. Couzens Warehouse & Distributors, 695 F.2d 1033, 1038 (7th Cir. 1982). Moreover, when the party moving for dismissal under Rule 12(b)(1) challenges the factual basis for jurisdiction, the nonmoving party (i.e., the plaintiff) must submit affidavits and other relevant evidence to resolve the factual dispute regarding the court's jurisdiction. Id.; Crawford v. United States, 796 F.2d 924, 927 (7th Cir. 1986).*fn5
The tolling provisions codified by 29 C.F.R. § 1613.214(a)(4)(i) state in unambiguous terms that the "agency shall extend the time limits" when the employee establishes that "he was not notified of the time limits and was not otherwise aware of them." (emphasis added). In light of the plain wording of the regulation, this court's ultimate task is relatively simple -- because the agency does not dispute that the required notice was not posted, it is only necessary to ...