                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-3065
                                    ___________

Benton S. Coons,                        *
                                        *
            Plaintiff - Appellant,      *
                                        *
      v.                                * Appeal from the United States
                                        * District Court for the District
Norman Y. Mineta, Secretary,            * of Minnesota.
Department of Transportation;           *
Marion C. Blakely, Administrator,       *
Federal Aviation Administration,        *
                                        *
            Defendants - Appellees.     *
                                   ___________

                              Submitted: March 16, 2005
                                 Filed: June 13, 2005
                                  ___________

Before MURPHY, HEANEY, and SMITH, Circuit Judges.
                          ___________

MURPHY, Circuit Judge.

       Benton S. Coons, a former air traffic controller, brought this action alleging he
was not rehired because of age and sex discrimination. Defendants Norman Mineta,
Secretary of the Department of Transportation (DOT), and Marion Blakely,
Administrator of the Federal Aviation Administration (FAA), moved to dismiss for
failure to file a timely administrative complaint. The district court granted the
motion, and Coons appeals. We conclude that the dismissal was premature and
remand for further proceedings.
                                          I.

       Coons worked as an air traffic controller at the Minneapolis Air Route Traffic
Control Center from 1970 to 1981 and was a member of the Professional Air Traffic
Controllers Organization (PATCO). PATCO organized a strike in 1981, and
President Ronald Reagan terminated the strikers and barred them from future
employment with the FAA. Since Coons had participated in the strike, he was
dismissed. He stayed active in the aviation industry, however, and maintained his
commercial pilot license and flight instructor certification. In 1993 President Bill
Clinton lifted the ban against employing former strikers, and the FAA issued a
recruitment notice inviting those who had been terminated to apply for rehire as air
traffic controllers. The FAA compiled a register of eligible applicants with their
location preferences for distribution to regional managers. Coons applied for rehire
in 1993 and indicated that he was interested in employment at the Minneapolis center.
The FAA considered him eligible for rehire and added him to the PATCO register.

       In 1998 the Minneapolis center planned to hire 13 air traffic controllers from
the PATCO register, and the FAA sent it a list of 98 eligible candidates who had
expressed interest in the center. Coons was one of the candidates on the list.
Although the Minneapolis center did not notify anyone on the list that it was hiring,
it entered the information received from the FAA on a worksheet with the applicants'
names, air traffic control experience, recent aviation experience, and ages. It offered
positions to 13 persons, including 2 women and an African American man.1 Coons,
who was 55 years old at the time, did not receive an offer. He alleges that no one
over the age of 55 was offered a position and that the only 2 women on the 98 person
candidate list were hired.



      1
       Apparently the African American applicant decided not to accept the offer,
and in this action Coons has not alleged discrimination on the basis of race.

                                         -2-
       Coons alleges that he never received notification that air traffic controllers
from the PATCO register were being rehired by the Minneapolis center in 1998 and
that he first learned on December 19, 2002 that it had done so. He heard that news
from a former colleague who told him that some controllers had filed complaints
because of perceived age discrimination in the 1998 hiring process and gave him the
name of a lawyer in case he wanted to pursue the issue.

      Coons consulted with an equal employment opportunity (EEO) counselor on
January 21, 2003 and filed a formal complaint with the DOT on January 23. In that
complaint he alleged ongoing discrimination based on age, sex, and race in
connection with the hiring from the PATCO register. The DOT Office of Civil
Rights dismissed the complaint because Coons had not initiated contact with an EEO
counselor within 45 days of the alleged discriminatory action in 1998, citing the
Equal Employment Opportunity Commission (EEOC) regulation at 29 C.F.R. § 1614.
Although the forty five day limit can be extended under some circumstances, the
DOT concluded that Coons was not entitled to an extension because he had not
exercised due diligence in monitoring the status of the application he had submitted
in 1993.

     Coons appealed the agency's decision to the EEOC Office of Federal
Operations. In affirming the decision it stated:

      [C]omplainant waited over four years before contacting an EEO
      Counselor. The Commission has held that complainants must act with
      due diligence in the pursuit of their claims or the doctrine of laches may
      be applied. The doctrine of laches is an equitable remedy under which
      an individual's failure to pursue his actions could bar his claim. Since
      complainant did not act with reasonable diligence in contacting an EEO
      Counselor, the doctrine of latches [sic] requires dismissal.

Coons' motion for reconsideration was denied.


                                         -3-
       Coons filed this action in the district court in October 2003, alleging that the
1998 hiring process discriminated on the basis of age and sex, in violation of the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The amended complaint
alleges that Larry Roche, a supervisor at the Minneapolis center, told employees there
that priority in the 1998 hiring process was given to women, African Americans, and
younger applicants. Coons alleges that he had no idea that the Minneapolis center
was hiring in 1998, that he was never sent a notice of nonselection, and that he was
not informed about his right to file a complaint with the EEOC or the filing deadline.
He further asserts that persons younger than himself have been hired as air traffic
controllers between 1993 and the time the complaint was filed.

       Appellees moved to dismiss for lack of subject matter jurisdiction on the basis
that Coons had not timely filed an administrative complaint. Their alternative
motion for summary judgment was stayed by agreement of the parties since there had
not yet been any discovery. The district court granted the motion to dismiss after
concluding that Coons had not acted "reasonably and with due diligence in that he
contacted the EEOC over four years after the decisions to hire other air traffic
controllers were made in 1998." The court also held that the EEOC decision not to
allow an extension of the forty five day time limit was based on a reasonable
interpretation of the regulation codified in 29 C.F.R. § 1614 and was therefore
entitled to deference.

                                          II.

       Our review of an order granting a motion to dismiss is de novo. Young v. City
of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001). When ruling on a motion to
dismiss, the court must accept the allegations contained in the complaint as true and
draw all reasonable inferences in favor of the nonmoving party. Id.



                                         -4-
       Prior to filing a federal employment action in the district court a complainant
must comply with certain notice and exhaustion requirements. An age discrimination
complainant should either give a thirty day notice of intent to sue to the EEOC within
180 days of the alleged unlawful practice, 29 U.S.C. § 633a(d), or exhaust his
administrative remedy by contacting an EEO counselor within 45 days of the
unlawful practice, 29 C.F.R. § 1614.105(a)(1). A person claiming sex discrimination
in federal employment has only one option and that is to contact a counselor within
the forty five day time period. See id.

      The EEOC exhaustion regulation provides that the forty five day time limit for
contacting an EEO counselor "shall be extended" when a person

      shows that he or she was not notified of the time limits and was not
      otherwise aware of them, that he or she did not know and reasonably
      should not have been [sic] known that the discriminatory matter or
      personnel action occurred, that despite due diligence he or she was
      prevented by circumstances beyond his or her control from contacting
      the counselor within the time limits, or for other reasons considered
      sufficient by the agency or the Commission.

29 C.F.R. § 1614.105(a)(2).

                                            A.

       Coons first argues that a plaintiff's failure to meet the administrative time
requirement does not deprive a federal court of subject matter jurisdiction and that the
district court erred by dismissing his complaint on that basis. He relies on Zipes v.
TWA, Inc., 455 U.S. 385, 393 (1982), where the Supreme Court held that "filing a
timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to
suit in federal court, but a requirement that, like a statute of limitations, is subject to
waiver, estoppel, and equitable tolling." Under Zipes a federal employment lawsuit


                                           -5-
may be subject to dismissal if the administrative deadline is not met, but it is not
because jurisdiction is lacking. Although Zipes was a Title VII case, the Court
pointed out that the legislative history of the ADEA contains an explicit statement
that the time requirement in that statute is not jurisdictional. 455 U.S. at 395 n.11.
We agree that under Zipes the complaint should not have been dismissed for lack of
subject matter jurisdiction and that Coons may assert the defense of equitable tolling.

       Appellees rely on Briley v. Carlin, 172 F.3d 567 (8th Cir. 1999), to support
their position. In Briley, the district court dismissed the complaint for lack of
jurisdiction based on failure to meet the forty five day agency deadline, but we did
not affirm its jurisdictional ruling. After holding an evidentiary hearing the district
court found that "no equitable tolling principles applied to [the plaintiff's] situation"
and that she had been familiar with the administrative requirements. Id. at 570-71.
There was no allegation that she had been unaware of the discriminatory act. On
review we held that "the facts defeat Briley's claim of equitable estoppel," finding no
clear error in the findings of fact by the district court. Id. at 571. We agreed that
discrimination claims are subject to equitable tolling, citing Hamilton v. West, 30
F.3d 992, 993 (8th Cir. 1994) (quoting Zipes, 455 U.S. at 398), but observed that the
remedy should be "reserved for circumstances that are truly beyond the control of the
plaintiff," quoting Shempert v. Harwick Chem. Corp., 151 F.3d 793, 798 (8th Cir.
1998) (internal quotation marks and citation omitted), cert. denied, 525 U.S. 1139
(1999). Briley, 172 F.3d at 570. The pertinent question is whether the employee had
knowledge of his "right not to be discriminated against or the means of obtaining
such knowledge." Id. (citing DeBrunner v. Midway Equip. Co., 803 F.2d 950, 952
(8th Cir. 1986)). The district court's dismissal was affirmed because the plaintiff had
not made out a claim of equitable tolling, not because there was no subject matter
jurisdiction.

      This case is different from Briley, for here the district court did not hold an
evidentiary hearing on which to base findings of fact and there have been no findings

                                          -6-
that Coons was aware of the administrative requirements or that no equitable tolling
principles apply. Coons has made allegations in his complaint which are relevant to
the test for equitable tolling, including the allegation that he did not know that a
discriminatory action had been taken. See Briley, 172 F.3d at 570 ("Equitable tolling
will extend a deadline missed due to an employee's excusable ignorance."); Dring v.
McDonnell Douglas Corp., 58 F.3d 1323, 1329 (8th Cir. 1995) (excusable ignorance
if a reasonable person would not have been expected to know of the violation).

       Coons has alleged that the discriminatory act took place in 1998 during the
Minneapolis center's hiring from the PATCO list and that he was unaware of it until
December 2002. Although President Clinton lifted the rehiring ban in 1993, Coons
alleges he had no knowledge that rehiring took place at the Minneapolis center in
1998. He first heard about it on December 19 and thereafter met with an EEO
counselor on January 21, 2003 and filed a complaint on January 23. Both of these
actions were taken within 45 days of his learning about the alleged discrimination.
Coons also alleges that he was not notified that an employment action had taken place
to trigger the forty five day period. Appellees appear to suggest that Coons should
have contacted the Minneapolis center every 45 days to inquire about any hiring
plans, starting in 1993 when he submitted his application for inclusion in the PATCO
register until the alleged discriminatory conduct about five years later. Without a
more developed record, it cannot be determined whether Coons reasonably should
have been expected at an earlier date to have learned about the hiring or the alleged
discrimination.

                                         B.

        Coons argues next that under the terms of the regulation the time limit should
have been extended in his case. Extension "shall" be granted under 29 C.F.R. §
1614.105(a)(2) under certain circumstances: (1) the claimant did not receive notice
of the time limit or know about it, (2) the claimant did not know and reasonably could

                                         -7-
not have been expected to know that the discriminatory action had occurred, and (3)
the claimant could not contact an EEO counselor within the time limit "despite due
diligence" because of "circumstances beyond his or her control." A fourth general
factor permits the agency to consider such other reasons it finds sufficient, and it is
separated from the first three factors by the word "or." Coons alleged in his
complaint that he was not notified that the Minneapolis center hired in 1998, was not
sent notice of his nonselection, and was not advised of his right to file a complaint
with the EEOC or of the corresponding deadlines. Viewed in the light most favorable
to Coons, the allegations in the complaint sufficiently claim that he meets the first two
factors in the regulation at 29 C.F.R. § 1614.105(a)(2). It also appears that he did
meet with an EEO counselor within 45 days of the date he allegedly learned about the
discriminatory action.

       Appellees urge us to defer to the EEOC's determination that Coons did not
exercise due diligence and is therefore not entitled to the protection offered by 29
C.F.R. § 1614.105(a)(2). We normally give substantial deference to an agency
interpretation of its regulations. But see Advanta USA, Inc. v. Chao, 350 F.3d 726,
728 (8th Cir. 2003). The record at this stage does not lend itself to a full
understanding of the agency action, however. It is not clear, for example, if the
agency took the position that Coons should have checked with a counselor every 45
days starting in 1993 or how the agency applied the regulation. Although the
regulation indicates that the forty five day time limit "shall" be extended if the
claimant did not know of the time limit, did not know of the discrimination, could not
contact an EEO counselor despite whatever diligence was due, or some other factor
sufficient to the agency, the district court stated that the agency "may" grant the
extension, but it did not explain its choice of word. The DOT and the EEOC appear
to interpret the regulation to require that all claimants show due diligence despite the
presence of the disjunctive "or" in the regulation. It is also not clear whether the
agency decision makers made any determination about whether circumstances beyond
his control kept Coons from timely contacting a counselor.

                                          -8-
                                           C.

        Coons' final argument is that his action is not barred because he alleged that the
FAA's discriminatory hiring practices are ongoing, causing the forty five day cycle
to restart throughout this period. His amended complaint states his belief that
younger individuals have been hired as air traffic controllers at the Minneapolis
center "between 1993 and the present." Viewed in the light most favorable to Coons,
this statement alleges ongoing discrimination. His administrative complaint referred
even more explicitly to ongoing discriminatory practices, but neither the
administrative decisions nor the district court order addressed this aspect of his
claims. The government's response on appeal is that no air traffic controllers have
been hired from the PATCO register at the Minneapolis center since the contested
hiring in 1998, but whether there is such evidence in the record is not clear. The
point would be more appropriately argued at summary judgment after discovery has
taken place since the allegations made by Coons are to be viewed as true at this stage.
See Young, 244 F.3d at 627. Coons complains about what he alleges to be a systemic
approach to hiring at the Minneapolis center.

                                           D.

       Taking all of the allegations in the amended complaint as true and drawing all
reasonable inferences from them, see id., we conclude that Coons has made a
cognizable threshold claim for equitable tolling, extension of the administrative time
limit for seeing an EEO counselor, and ongoing discrimination sufficient to withstand
the motion to dismiss at this juncture. Jurisdiction is not lacking over his complaint,
and it should not have been dismissed without further development of the record and
opportunity for an evidentiary hearing. Accordingly, we reverse and remand to the
district court for further proceedings consistent with this opinion.
                         ______________________________



                                           -9-
