Filed November 2, 2010
See Fellows v. Universal Restaurants, Inc., 701 F.2d 447, 450 -451 (5th Cir. 1983) (the underlying policies of Title VII “are not served by limiting judicial relief to technical niceties of the language used by an often unlettered or unsophisticated employee in filing his or her initial grievance.”); Briones, 101 F.3d 287 at 290 (holding that waiver, estoppel, and equitable tolling apply to the federal government). In the specific context of 29 C.F.R. § 1614, there is persuasive precedent for allowing a class action to proceed where the class representatives did not pursue their administrative class action remedies in the precise manner dictated by the regulation.
Filed February 27, 2015
B. Accrual of the Forty-Five Day Period The forty-five day limitations period accrues from the “date of the alleged discriminatory event, or of the date that [the employee] knew or should have known of the discriminatory event.” Briones, 101 F.3d at 290; see also Delaware State College v. Ricks, 449 U.S. 250 (1980); Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir.1994); United States v. City of New York, 631 F. Supp. 2d 419, 428 (S.D.N.Y. 2009) (citing Harris v. City of N.Y., 186 F.3d 243, 247 (2d Cir. 1999)). A discrimination claim does not accrue when the employee learns of a discriminatory motive behind a prior adverse employment action, but rather when the Plaintiff becomes aware of the actual injury, i.e the adverse employment action.
Filed October 22, 2010
Moreover, Briones recognizes that when confronted with an adverse timeliness decision, an agency can (1) proceed with an investigation, (2) move for reconsideration, or (3) “refuse[] to proceed.” 101 F.3d at 291. In this case, Census was not even given an opportunity to move forward because Houser unilaterally chose to file this action in federal district court, thereby terminating the administrative process.
Filed July 16, 2010
In Briones, the United States Postal Service (“USPS”) conducted an investigation and issued a final agency decision on the merits after the EEOC had reversed USPS’s decision finding a failure to meet the 45-day deadline. See Briones,101 F.3d at 289 (“[T]he Postal Service neither appealed the EEOC’s determination nor refused to proceed, but, rather, began its investigation.”) (emphasis added); see also Girard v. Dep’t of Treas., 62 F.3d 1244, 1247 (9th Cir. 1995), id.
Filed February 1, 2012
9 Case 1:10-cv-09476-CM-FM Document 56 Filed 02/01/12 Page 16 of 32 administrative remedies in a timely fashion” as a prerequisite to gaining access to the federal courts. Briones v. Runyon, 101 F.3d 287, 289 (2d Cir. 1996); see also Belgrave v. Pena, 254 F.3d 384, 386 (2d Cir. 2001). The exhaustion requirement provides the agency with notice of an employee’s complaint and the opportunity to investigate the matter and take remedial action, where necessary.
Filed April 16, 2005
Id. at 401. - 7 - Case 1:04-cv-10593-EFH Document 28 Filed 04/16/2005 Page 7 of 16 1131, 71 L.Ed.2d 234 (1982) (timely filing of an EEOC charge by a private-sector employee is non-jurisdictional and subject to waiver); McKinnon v. Kwong Wah Restaurant, 83 F.3d 498, 505 (1st Cir. 1996) (the requirement in 42 U.S.C. §2000e-5(f)(1) that plaintiff name the defendant in the EEOC charge is non-jurisdictional and subject to waiver); Nunnally v. MacCausland, 996 F.2d 1, 2 (1st Cir. 1993) (statutory time period for federal employee to file suit under 5 U.S.C. § 7703(b)(2) is nonjurisdictional); Rice v. New England College, 676 F.2d 9, 10 (1st Cir. 1982) (requirement that plaintiff file suit within 90 days of receipt of right to sue letter is nonjurisdictional); Briones v. Runyon, 101 F.3d 287, 290 (2d Cir. 1996) (requirement that federal employee bring matter to attention of agency’s EEO counselor within statutory time period is subject to waiver); Owen v. West, 182 F.Supp.2d 180, 191 (D.Mass. 2001) (same). To avoid waiver, a defendant must assert all affirmative defenses in the answer.