by Art Gutman Ph.D., Professor, Florida Institute of Technology

Ordinarily, we are not interested in misfiled cases, but this one involves a claim misfiled with the OFCCP that could have been dropped because of the Title VII statute of limitations. Fortunately for the plaintiffs, a case in which their attorney made a mistake was discounted in favor of the fact that the OFCCP made a subsequent mistake.

Angel Granger and Casey Descant, employees at Aaron’s, accused their supervisor (and store manager) Kennard Williams of a pattern of sexual harassment. Descant resigned on September 23, 2007, and Granger resigned on June 30, 2007. The case should have been filed with the EEOC, and the statute of limitations for that filing was 300 days from the point of resignation for both women. The attorney for the women filed a claim on November 27, 2007, well within these limits.

However, the claim was filed with the OFCCP, which had no jurisdiction because Aaron’s is not a federal contractor. Over the next several months, the attorney’s staff made at least 6 phone calls to the OFCCP, mistakenly believing they were interacting with the EEOC. The OFCCP assured the attorney's staff that it was investigating the claims. The OFCCP also did not follow its own regulations requiring it to notify an employer after receiving a discrimination complaint. Then, the OFCCP closed the case on September 4, 2008, and forwarded it to the EEOC on September 8, 2008. The EEOC, in turn, issued a charge against Aaron’s on September 16, 2008, well beyond the statute of limitations.

Ordinarily, courts will not toll a claim because of attorney error. However, in this case, the plaintiffs were fortunate because of the failure on the part of the OFCCP to communicate the filing error to the attorney. The district tolled (and hence preserved) the claim, and the 5th Circuit affirmed, ruling as follows:

In this case, the circumstances favor permitting Granger and Descant's claims to proceed. They were diligent about pursuing their rights and their attorney diligently and repeatedly followed up on their claims within the 300-day period, notwithstanding his filing in the wrong forum. In light of their actions, the government's considerable errors and neglect, and the lack of demonstrated prejudice to Aaron's, this case presents sufficiently rare circumstances (we trust) to support the district court's application of equitable tolling.

The text of the 5th Circuit ruling may be found here.

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