R. LANIER ANDERSON, III, Circuit Judge:
W. B. Coke, Jr. brought this suit under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.A. §§ 621 et seq. (1975), alleging that General Adjustment Bureau, Inc. (GAB) unlawfully discriminated against him on account of his age by demoting him. GAB moved for summary judgment. The basis of GAB's
The en banc court faces only two issues:
On or about May 1, 1976, Coke was demoted from his position as general manager of GAB's Dallas, Texas, office to a position as adjuster. He was 55 years old at the time and was replaced by an employee who was under 40 years of age. Shortly after the demotion, Coke advised Mr. Biegert, an official of one of GAB's largest clients. Mr. Biegert, who knew Coke both professionally and personally, contacted GAB to obtain Coke's reinstatement. Mr. Biegert was assured by GAB that corrective action would be taken to reinstate Coke as manager. The first such contact occurred in May, 1976, but, when Coke was not reinstated, he again advised Biegert who again contacted GAB, who was again assured that Coke would be reinstated. Several more such conversations occurred between Biegert and GAB from May through August, 1976, and on each occasion Biegert was assured by GAB that Coke would be reinstated. On each occasion these assurances were passed along to Coke. Relying on GAB's representations, Coke believed he would be reinstated and did not at that time file the required
II. EQUITABLE TOLLING OF THE NOTICE REQUIREMENT
GAB's primary argument in support of the district court's grant of summary judgment is that the 180-day filing requirement is a jurisdictional prerequisite, that failure to comply deprives the court of subject matter jurisdiction, and that the court thus has no jurisdiction to consider whether the time period should be tolled for some equitable reason. In addressing this issue, we discuss (1) the relevant Supreme Court cases, (2) the developing case law in the other circuit courts of appeal, (3) our own Fifth Circuit precedent, and (4) the legislative history. In our discussion we will refer not only to cases applying the 180-day notice requirement of ADEA, but also to cases arising under Title VII of the Civil Rights Act of 1964.
1. Relevant Supreme Court Cases
In Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972), the Supreme Court refused to read literally a related provision of Title VII involving the requirement to file a charge with EEOC. The district court had dismissed the complaint, regarding the requirement as jurisdictional, and the Tenth Circuit had affirmed. The Supreme Court reversed, rejecting the employer's argument for a literal interpretation, saying that it would simply add "an additional procedural technicality. Such technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process." 404 U.S. at 526-27, 92 S.Ct. at 618-19.
In International Union of Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976), the Supreme Court considered whether the comparable 180 day time period in the Title VII context would be tolled because plaintiff was pursuing a grievance procedure established under a collective bargaining agreement. The Supreme Court considered no less than five variations on the tolling argument. The Supreme Court rejected each argument, not on the basis that the 180 day period was jurisdictional, but after consideration of the merits of whether or not the pursuit of grievance procedures should toll the running of the limitations period. The court relied on two of its previous decisions — Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), where the Court had held that a Title VII claim was separate and independent from a contract claim under the collective bargaining agreement and therefore that the Title VII claim was not foreclosed by the previous final arbitration under the grievance procedures; and Johnson
___ U.S. at ___, 101 S.Ct. at 506. See also Mohasco Corp. v. Silver, 447 U.S. 807 818 n.22, 100 S.Ct. 2486, 2493 n.22, 65 L.Ed.2d 532, 543 n.22 (1980).
The trend of the Supreme Court cases is also significant. In the early cases, the Court in dicta referred to such time provisions using the label "jurisdictional prerequisite." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). In the 1976 Robbins & Myers decision the jurisdictional label was used once, but there were numerous references to "tolling the limitations period," 429 U.S. at 239, 97 S.Ct. at 448, and other labels obviously referring to a statute of limitations, as opposed to subject matter jurisdiction. See also United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), in which both labels are used. From and after late 1977, all nine justices have concurred in opinions containing dicta using the limitations label to the exclusion of the jurisdictional label. Occidental Life Insurance Company v. EEOC, 432 U.S. 355, 371-72, 97 S.Ct. 2447, 2457, 53 L.Ed.2d 402 (1977);
Another persuasive indication that the Supreme Court does not consider the timely filing of a claim to be a jurisdictional prerequisite is its treatment of Title VII class actions. As we noted in Chappell v. Emco Machine Works Co., 601 F.2d at 1298, and as the District of Columbia Circuit noted in Bethel v. Jefferson, 589 F.2d 631, 641 n.64 (D.C. Cir. 1978), the Supreme Court has held that not all members of a Title VII class action need exhaust their administrative remedies. United Air Lines v. McDonald, 432 U.S. 385, 389 n.6, 97 S.Ct. 2464, 2467 n.6, 53 L.Ed.2d 423 (1977); Franks v. Bowman Transportation Co., Inc., 424 U.S. 747, 771, 96 S.Ct. 1251, 1267, 47 L.Ed.2d 444 (1976); Albermarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8, 95 S.Ct. 2362, 2370 n.8, 45 L.Ed.2d 280 (1975). Compare this treatment with that accorded class members in actions in which the court held that each class member must satisfy the jurisdictional amount of $10,000 in order to participate. Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973); Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969). If the timely filing of an administrative claim is truly a jurisdictional prerequisite, then each class member should be required to file a claim before participating in a Title VII class action, just as each class member must satisfy the jurisdictional amount in other class actions. The fact that they do not is an indication that the Court does not consider the filing requirement to be jurisdictional.
Although no Supreme Court holding has addressed the precise issue before us, we conclude that there are definite and strong signals from the Court pointing toward a finding that the 180-day notice requirement is not a question of subject matter jurisdiction, but is a condition precedent — more in the nature of a statute of limitations — which is subject to equitable tolling.
2. The Developing Case Law in the Other Circuit Courts of Appeal
Although there is language in the earlier cases, and also an occasional holding, that the 180 day filing requirement is a jurisdictional prerequisite, the overwhelming trend is that the time provision is subject to equitable tolling. On August 11, 1980, the Sixth Circuit, in a unanimous opinion, en banc, overruled its prior cases which had held that the 180 day provision of ADEA was jurisdictional. Relying on its own struggles with the harshness of the jurisdictional rule, and on the developing law in other circuits, and on the legislative history relating to the 1978 amendments to ADEA, the Sixth Circuit clearly adopted equitable tolling. Wright v. State of Tennessee, 628 F.2d 949 (6th Cir. 1980) (en banc). Currently, the only circuit court of appeals case holding that the 180-day time period — in either the Title VII or the ADEA context — is jurisdictional is the Seventh Circuit. In re Consolidated Pretrial Proceedings, Etc., 582 F.2d 1142 (7th Cir. 1978), pet. for cert. pending sub nom. Zipes v. Trans World Airlines, Inc., 442 U.S. 916, 99 S.Ct. 2834, 61 L.Ed.2d 282 (1979). That case involves Title VII's time period, and was decided on the very same day, August 24, 1978, that the Seventh Circuit in Kephart v. Institute of Gas Technology, 581 F.2d 1287 (7th Cir. 1978), decided that the comparable 180 day provision of ADEA was not jurisdictional. Of course, Consolidated Pretrial did not cite Kephart. It relied on the earlier Supreme
The following summary shows the present status of the other circuits with respect to the 180 day time provision of ADEA and Title VII:
a. First Circuit: The First Circuit has expressly reserved decision on the issue, both with respect to ADEA, Ciccone v. Textron, Inc., 616 F.2d 1216 (1st Cir.), vacated and remanded, ___ U.S. ___, 101 S.Ct. 311, 66 L.Ed.2d 143 (1980) and with respect to Title VII, Daughtry v. King's Department Stores, Inc., 608 F.2d 906 (1st Cir. 1979).
b. Second Circuit: The Second Circuit has not yet definitely ruled on the issue in the ADEA context. See Reich v. Dow Badische Co., 575 F.2d 363 (2d Cir.), cert. denied 439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.2d 683 (1978). In the Title VII context, Smith v. American President Lines, Ltd., 571 F.2d 102, 109 (2d Cir. 1978), left the question open, but the court's discussion suggests a leaning toward the developing law favoring equitable tolling.
c. Third Circuit: The Third Circuit has adopted equitable tolling both in the ADEA context and in the Title VII context. Bonham v. Dresser Industries, Inc., 569 F.2d 187 (3d Cir. 1977), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978) (ADEA); Hart v. J. T. Baker Chemical Co., 598 F.2d 829 (3d Cir. 1979) (Title VII).
d. Fourth Circuit: The Fourth Circuit has not addressed the issue in either the ADEA or the Title VII context.
e. Sixth Circuit: The Sixth Circuit has now adopted equitable tolling under both Acts. Wright v. State of Tennessee, 628 F.2d 949 (6th Cir. 1980) (en banc) (ADEA); Leake v. University of Cincinnati, 605 F.2d 255 (6th Cir. 1979) (Title VII).
f. Seventh Circuit: The Seventh Circuit has adopted equitable tolling in the ADEA context, Kephart v. Institute of Gas Technology, 581 F.2d 1287 (7th Cir. 1978), but has rejected it in the Title VII context. See In re Consolidated Pretrial Proceedings, Etc., supra. But see note 11, supra.
g. Eighth Circuit: The Eighth Circuit has adopted equitable tolling in the ADEA context, Nielsen v. Western Electric Co., 603 F.2d 741 (8th Cir. 1979). In the Title VII context, the Eighth Circuit precedent is not absolutely clear, but it is probable that equitable tolling is available. See Satz v. ITT Financial Corp., 619 F.2d 738, 745 n.11 (8th Cir. 1980); Olson v. Rembrandt Printing Co., 511 F.2d 1228 (8th Cir. 1975); Richard v. McDonnell Douglas Corp., 469 F.2d 1249 (8th Cir. 1972).
h. Ninth Circuit: The Ninth Circuit has apparently adopted equitable tolling under Title VII. Cooper v. Bell, 628 F.2d 1208 (9th Cir. 1980); Malone v. North American Rockwell Corp., 457 F.2d 779 (9th Cir. 1972). But it has not definitely ruled on the issue with respect to the ADEA. See Hageman v. Philips Roxane Laboratories, Inc., 623 F.2d 1381 (9th Cir. 1980) (court assumed without deciding that filing period was subject to equitable modification but concluded that circumstances did not warrant tolling).
i. Tenth Circuit: The Tenth Circuit has adopted equitable tolling under both Acts. Dartt v. Shell Oil Co., 539 F.2d 1256 (10th Cir. 1976), aff'd. by equally divided Court 434 U.S. 99, 98 S.Ct. 600, 54 L.Ed.2d 270 (1977) (ADEA); Sanchez v. Trans World Airlines, Inc., 499 F.2d 1107 (10th Cir. 1974) (Title VII).
3. The Fifth Circuit Precedent
With this background of signals from the Supreme Court and overwhelming precedent from the other circuits, we turn to our own Fifth Circuit precedent. GAB relies primarily on McArthur v. Southern Airways, Inc., 569 F.2d 276 (5th Cir. 1978) (en banc), which involved Title VII's comparable requirement for filing a charge with the EEOC. GAB points to the court's language: "The district court should have dismissed this cause for lack of jurisdiction." 569 F.2d at 277. It is true that McArthur did use the label "lack of jurisdiction." However, our discussion above of the Supreme Court cases indicates that the jurisdictional label has often been used loosely, and sometimes interchanged in the same opinion with statute of limitations terminology. In both Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975) and Chappell v. Emco Machine Works Co., supra, panels of this court have recognized the fact that courts have often referred to these time provisions loosely as jurisdictional, without consideration of whether equitable tolling is permissible, and sometimes labeling the requirement as a jurisdictional prerequisite in one breath and considering in the next breath whether the time should be tolled because of some equitable reason.
The McArthur plaintiffs-appellants made no equitable tolling arguments to the en banc court, arguing only that the alleged discriminatory acts were continuing violations. As noted by the en banc court, 569 F.2d at 277, the plaintiffs expressly conceded that United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977) — which did not address the jurisdiction issue,
Both before and after our 1978 McArthur decision, panels of this court have held that Title VII's 180-day time period is subject to equitable tolling. Finding support from Fifth Circuit precedent, and also from the Supreme Court opinion in Love v. Pullman Co., supra, we held in Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975):
516 F.2d at 928 (citations omitted). In Chappell v. Emco Machine Works Co., 601 F.2d 1295 (5th Cir. 1979), Judge Charles Clark, writing for himself and Judge Wisdom over Judge Fay's dissent, carefully analyzed the Fifth Circuit precedent, including McArthur, and the relevant Supreme Court cases, and concluded:
601 F.2d at 1301-02. In October 1978, barely seven months after the McArthur decision, the en banc court decided White v. Dallas Independent School District, 581 F.2d 556 (5th Cir. 1978) (en banc), which involved a related Title VII provision requiring under certain circumstances that a charge of discrimination be made first to an appropriate state agency before filing with EEOC. Although Mrs. White did file with EEOC, she had not first filed with the state and could not do so later because of the bar of the state statute of limitations. The district court dismissed Mrs. White's complaint for lack of jurisdiction. We held en banc that deferral to the state agency was required, but that Mrs. White's suit in district court should not have been dismissed because she was misled by EEOC letters to her indicating that her charge was timely and that she had met all other requirements, and because the EEOC failed to follow its own regulations requiring it to transmit charges to state or local agencies in deferral states. Although we expressly declined to decide whether the provision was a "jurisdictional prerequisite," we necessarily held that the equitable consideration of the misleading EEOC letters excused Mrs. White's failure to file with the state agency.
We conclude therefore that McArthur does not preclude equitable tolling and does not stand for the proposition that the 180-day provision relates to the subject matter jurisdiction of the court; accordingly, GAB's reliance on McArthur is misplaced. In the Title VII context, Reeb v. Economic Opportunity Atlanta, Inc., supra, and Chappell v. Emco Machine Works Co., supra, clearly establish the Fifth Circuit precedent as permitting equitable tolling of the 180 day provision.
4. The Legislative History
Neither the language nor the legislative history of either Act — Title VII or ADEA — provides a definitive answer to the issue we face. We do note that in each Act there is a provision
Several courts have noticed, and we agree, that the legislative history of the two Acts provides very little guidance.
Turning to the legislative history of the ADEA, we note that in revising the very ADEA provision at issue in 1978, Congress expressly endorsed several circuit court opinions approving equitable tolling. The conferees stated:
House Conference Report No. 950, 95th Cong., 2d Sess. at 12, reprinted in 1978 U.S.Code Cong. & Admin.News 504, 534 (footnote omitted). Although subsequent legislative history is not considered part of the legislative history of the Act and cannot overcome the clear and convincing import of contemporary legislative history, Oscar Mayer & Co. v. Evans, 441 U.S. 750, 758, 99 S.Ct. 2066, 2072, 60 L.Ed.2d 609 (1979), it is well established that subsequent legislative history is entitled to some weight, especially where the intent of the enacting Congress is uncertain, Cannon v. University of Chicago, 441 U.S. 677, 686, n.7, 99 S.Ct. 1946, 1952, n.7, 60 L.Ed.2d 560 (1979). See also Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 596, 100 S.Ct. 800, 814, 63 L.Ed.2d 36, 54 (1980), stating:
(Citations omitted). It is evident from the foregoing excerpt of the legislative history of the 1978 amendments that Congress was aware of the prevalent view of various courts, including this one, that the ADEA's filing period is subject to equitable modification. Had this been an incorrect view of Congress' intent, Congress had the opportunity to correct it. In the absence of any clear intent by the enacting Congress, Congress' later acquiescence in and apparent approval of the judicial interpretations offers significant evidence that equitable modification of the time limit is appropriate.
5. Conclusion Concerning Equitable Tolling
To summarize, we find strong signals from the Supreme Court favoring equitable tolling. We find overwhelming authority from the other circuits favoring equitable tolling. Our own Fifth Circuit cases have adopted equitable tolling in the related Title VII context. The legislative histories of Title VII and the ADEA, though not conclusive, point toward equitable tolling. We also believe that consideration of equitable factors more nearly fits the statutory purpose than would a construction that the provision is a rigid jurisdictional prerequisite. Like Title VII of the Civil Rights Act of 1964, the ADEA is remedial legislation, and therefore entitled to the benefit of
On the basis of Supreme Court authority, and that of our own and other circuits, and on the basis of the legislative history and purpose of the Act, we conclude that the 180-day provision at issue is a pre-condition to filing suit in district court, but is not related to the subject matter jurisdiction of the court. The provision is subject to equitable tolling.
III. GENUINE ISSUE OF FACT AS TO EQUITABLE TOLLING
The posture of this case is significant. GAB's motion for summary judgment has been granted because Coke failed to notify the Secretary of Labor within 180 days of his demotion. Thus, Coke has not had an opportunity to develop at trial proof of facts which he asserts should equitably toll the 180 day requirement. On summary judgment, a court must draw all inferences of fact in favor of the party opposing summary judgment, and the burden is on the moving party to demonstrate that there is no genuine issue of fact.
10 C. Wright and A. Miller, Federal Practice and Procedure, § 2727 at 524-30 (1973) (footnotes omitted). See also United States Steel Corp. v. Darby, 516 F.2d 961, 963 (5th Cir. 1975); Clark v. West Chemical Products, Inc., 557 F.2d 1155, 1157 (5th Cir. 1977); 6 Moore's Federal Practice, § 56.15. It is also significant in this case that GAB, for purposes of summary judgment admitted the facts asserted in Coke's affidavit, offered no affidavits of its own, and argued in the court below only that the 180 day provision was a jurisdictional prerequisite.
359 U.S. at 232-33, 79 S.Ct. at 761-62.
Accordingly, the judgment of the district court is REVERSED AND REMANDED.
FAY, Circuit Judge, with whom GEE, Circuit Judge, joins, specially concurring in the result only:
In writing for the court, Judge Anderson has done a scholarly job of assembling those authorities and pieces of legislative history which hint, imply, suggest or allow one to infer from silence that the 180-day filing requirement of the ADEA is subject to equitable tolling. An overwhelming majority of our en banc court agrees with our brother and consequently, until the Supreme Court deals directly with the issue, we have a clear statement of the law within our circuit. This is good.
As I stated in my partial dissent from the original panel opinion, 616 F.2d at 790, it concerned me that panels of our court ignored the clear (to me) holding of our en banc opinion in McArthur v. Southern Airways, Inc., 569 F.2d 276 (5th Cir. 1978). That case has now been overruled.
Although I am unable to find in the cited Supreme Court opinions the support necessary to conclude that Congress did not mean what it said, I have no stomach for continuing to urge the harshness of an absolute condition precedent (timely notice) to such claims. My brothers and sisters find that equitable tolling has a place in the presentation of such claims. This will most certainly allow many more to be decided on the merits. Abstract justice is not always inappropriate.
29 U.S.C.A. § 626(d)(1) (1975) (amended 1978).
In 1978, Congress amended this section of the ADEA, but the amendment is applicable only to suits filed after its effective date. Age Discrimination in Employment Act Amendments of 1978, § 4(b). Pub.L.No.95-256, 92 Stat. 189. Since this suit was filed prior to April 6, 1978, the effective date of the amendment, the original provision of the ADEA applies. As amended, § 626(d)(1) now provides:
29 U.S.C.A. § 626(d)(1) (Supp.1980).
The Supreme Court has impliedly resolved this question in Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980). In that case, the Court noted that the Title VII complaint had not been filed in the district court within the 90-day period, but did not sua sponte dismiss the action as it would have had the Court considered it to be a question of subject matter jurisdiction. The Court simply noted that "[p]etitioner did not assert respondent's failure to file the action within 90 days as a defense," id. at 811, n.9, 100 at 2489 n.9, 65 L.Ed.2d at 539 n.9, implying that petitioner had waived that defense. A statute of limitations defense may be waived, but the subject matter jurisdiction of the court cannot be waived or conferred upon the court by consent of the parties.