author: PIERAS, District Judge.

text:
    Edward HERNANDEZ, Ruben Estepa, et al., Plaintiffs, v. SEA-LAND SERVICE, INC., Defendant.
    Civ. No. 84-1180 (JP).
    United States District Court, D. Puerto Rico.
    May 24, 1985.

      Vicente Ortiz Colon, Hato Rey, P.R., for plaintiffs.
    J. Ramon Rivera Morales, Jimenez & Fuste, San Juan, P.R., for defendant.
   OPINION AND ORDER

PIERAS, District Judge.

This action was brought by fifty-four plaintiffs under 32 L.P.R.A. 3118-3132 and the Minimum Wage Law of Puerto Rico, 29 L.P.R.A. 245-246m. Defendant petitioned for removal to this Court on the basis of diversity of citizenship pursuant to 28 U.S.C. § 1332 and § 1446.

The plaintiffs, as employees of defendant Sea-Land Service, Inc., are seeking additional compensation of not less than $100,-000.00 for accumulated sick leave under the terms of Mandatory Decree Number 38 (Sixth Revision), issued by the Minimum Wage Board of the Puerto Rico Department of Labor and Human Resources. Plaintiffs claim they are owed the difference between the amount of compensation computed on the basis of an eight-hour workday, as provided in the Decree, and the amount actually paid them, which was based on a seven-hour workday. Plaintiffs are also claiming a penalty payment in an equal amount to the sum owed, pursuant to 29 L.P.R.A. 246b. In addition, plaintiffs have opposed removal, arguing that, because the dispute should be arbitrated, the state court had no jurisdiction initially and thus no derivative jurisdiction exists in the Federal court upon removal.

By Order of the Court dated May 24, 1984, the parties agreed to submit this case without any evidentiary hearing by the filing of briefs. Plaintiffs have rested on their Memorandum on the Question of Jurisdiction; defendant has submitted a Memorandum requesting that the Court accept jurisdiction and dismiss this action for failure to state a claim. We take defendant’s Memorandum as a Motion to Dismiss under F.R.C.P. 12(b)(6) and, for purposes of this opinion, treat it as a Motion for Summary Judgment under F.R.C.P. 56, there having been matters outside the pleadings presented to, and not excluded by, this Court. F.R.C.P. 12(b).

I. FINDINGS OF FACT:

The material facts required for disposition of this suit are not in dispute. These facts are set forth as follows:

1. The plaintiffs, whose names appear in Attachment A to the Complaint, were employed by the defendant as office and professional employees under the terms of Mandatory Decree Number 38 (Sixth Revision (1974), which is applicable to the Transportation Industry.

2. Article VIII of Mandatory Decree Number 38 provides the following with respect to sick leave:

Every employee shall be entitled to sick leave with full pay at the rate of one and one twelfth (U/12) (13 days per year) day for each month during which he has worked at least one hundred (100) hours. Sick leave not taken by the employee during the course of the year shall be accrued for successive years. If sick leave days accrued exceed twenty six days on November 30 of any year, the employer shall be bound to pay in cash, the period in excess of said twenty-six (26) days at the rate of eight daily hours multiplied by the regular wage rate the employee is earning at the time. Payment on the excess of twenty-six (26) days shall be made not later than the 15th of the following month. Except in cases of acts of God, the employee must notify his employer of his sickness the same day he is absent. In case of sickness lasting over two (2) days, the employees must accredit the same with a medical certificate in order to be entitled to enjoy the leave provided herein. The compensation corresponding to sick leave shall be paid during the week in which the absence occurs. The compensation corresponding to sick leave shall be computed multiplying by eight (8) hours the average regular hourly wage the employee is earning during the time of his illness. In case the employees ceases in work, the employer shall pay him the total thus far accumulated in excess of 26 days.

3. The plaintiffs, being numbers of a collective bargaining unit and represented by the Office of Professional Employees International Union (OPEIU), were employed by defendant under the terms and conditions of an applicable collective bargaining agreement.

4. Article VII(2) of the applicable collective bargaining agreement provides in pertinent part as follows:

“Employees shall be entitled to one day of paid sick leave for each month of employment or major fraction thereof. However, employees may not use their sick leave during the sixty (60) working-day probationary period. During the third month of employment an employee will have accumulated to his or her credit three (3) days of sick leave and will continue to accumulate sick leave at the rate of one day per month with a maximum accumulation of one hundred (100) days.”

5. Notwithstanding Article VII(2) quoted in FINDING No. 4 above, defendant Sea-Land Service has provided sick leave benefits to plaintiffs at the rate of thirteen days per year, as required by Mandatory Decree Number 38.

6. In April 1978, defendant Sea-Land Service liquidated the accrued sick leave of plaintiffs in excess of 26 days on the basis of a seven-hour work-day.

7. The working day of plaintiffs, as provided in the collective bargaining agreement (Article IV(1)), consists of seven hours per day.

8. Article XV of the collective bargaining agreement contains an arbitration clause which provides for the submission to final and binding arbitration of any “grievance” as defined therein which is not settled under the grievance procedure outlined therein. (XV, 3-4) “Grievance” is defined as “any complaint or dispute arising between the parties to this Agreement involving the interpretation, application, or claimed breach of this Agreement.” (XV, 1).

9. The Union representing plaintiffs filed a charge against Sea-Land Service, Inc. before the Labor Relations Board of Puerto Rico on January 20, 1984. The charge alleged failure by the employer to submit to arbitration the dispute relating to the interpretation and application of Mandatory Decree Number 38, Art. VIII to cases of employees’ sick leave. In a notice filed July 20, 1984, the charge was dismissed by the Board as a matter for the courts to decide because the allegations of the charge failed to establish a violation of the collective bargaining agreement.

II. CONCLUSIONS OF LAW:

A. Whether this Court has jurisdiction:

Plaintiffs claim this Court has jurisdiction of this removal action because the state court had no jurisdiction. They contend that, because the employer refused to submit the controversy to arbitration, they had “no other recourse but to file [an action in state court] despite their earnest doubts about the jurisdiction of the courts of law to entertain this matter.” Plaintiffs’ Response to Supplemental Memorandum of Law by Defendant, filed August 6, 1984, at 1-2.

Plaintiffs’ argument is wholly without merit. Plaintiff initiated suit in the Superi- or Court of Puerto Rico in April 1984, while their charge to compel arbitration was still pending before the Labor Relations Board. Furthermore, plaintiffs brought a statutory cause of action in state court under 32 L.P.R.A. 3118-3132, 29 L.P.R.A. 246b and Mandatory Decree Number 38. There is no mention in plaintiffs’ complaint of the employer’s refusal to arbitrate, nor do plaintiffs request the Court to determine the arbitrability of the dispute and compel the employer to arbitrate. Plaintiffs’ prayer is for monetary compensation alone, including attorneys’ fees.

Plaintiffs raise the question of arbitrability for the first time in their Motion to Oppose Removal. Even if this Court accepted plaintiffs’ belated request for arbitration as an amendment to their complaint, the question of arbitrability does not affect the jurisdiction of a court. E.g., Int’l Union of Operating Engineers, Local 150, AFL-CIO v. Flair Builders, Inc., 406 U.S. 487, 92 S.Ct. 1710, 32 L.Ed.2d 248 (1972); Pérez v. Water Resources Authority, 87 P.R.R. 110 (1963). If it did, no court — state or federal — would be empowered to determine whether a dispute were arbitrable, and to issue an order compelling arbitration.

Plaintiffs have not challenged the existence of diversity of citizenship as a basis for jurisdiction in this case. Defendant alleges to be a Delaware corporation with its principal place of business in New Jersey and claims plaintiffs are citizens and residents of Puerto Rico. Rather than contesting these allegations, plaintiffs have argued that a removal based on diversity jurisdiction is derivative and no jurisdiction existed in state court for the reasons stated above. Furthermore, the plaintiffs have claimed at least $100,000.00 in relief. Accordingly, the Court finds the requirements of 28 U.S.C. 1332 to be satisfied and assumes jurisdiction based on diversity.

B. Whether the present dispute is subject to arbitration:

By Order of May 24, 1984, the parties submitted to this Court the issue of whether the Court should order the case to be arbitrated. For the determination of this issue, we must apply Federal law, regardless of whether we sit in removal directly adjudicating a federal question under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, or whether we sit in diversity finding that Federal law completely preempts this area of labor law. Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 2853-54, 77 L.Ed.2d 420 (1983), explaining Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n. of Machinists, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), cited in Hernandez Agosto v. RomeroBarceló, 748 F.2d 1, 3 (1st Cir.1984).

Plaintiffs’ request in this case is for the arbitration of a dispute concerning the interpretation and application of a Mandatory Decree regarding liquidation of accrued sick leave in excess of 26 days. Plaintiffs have pointed to the arbitration clause of the collective bargaining agreement to support their claim that the parties agreed to submit all controversies, of any subject matter, to arbitration. Defendant argues that, since the arbitration clause provides only for arbitration of controversies involving the interpretation, application or claimed breach of the agreement, there is nothing to arbitrate here because the dispute is a purely legal one, involving the interpretation and application of a Mandatory Decree.

The role of the arbitrator is of unquestionable import in the resolution of contractual disputes and the prevention of industrial strife. Where the arbitration clause provides, as here, for submission of all questions of contract interpretation to the arbitrator, the function of the court is limited to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract. United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960).

The Agreement in this case contains no provision regarding liquidation of sick leave. Article VII alone deals with sick leave. The only provision of said Article which deals with accumulation of sick leave is quoted in Part I, 4 supra. Although this provision states the rate of accumulation of sick leave, the parties have agreed that, for purposes of the claims in this suit, the defendant has computed accrual in accord with Mandatory Decree Number 38; no issue of fact or law as to this provision has been raised by the plaintiffs. Indeed, the parties have raised no factual issues as to the number of days or the wage rate to compute each plaintiffs liquidation.

In sum, we find that the arbitration clause is not susceptible of an interpretation that covers this dispute. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1352-53, 4 L.Ed.2d 1409 (1960). The Agreement shows no evidence that arbitration regarding liquidation of sick leave was included in the parties’ promise to arbitrate all matters involving interpretation, application or breach of the Agreement. If no such promise was made, no violation of the Agreement can exist. The Labor Relations Board of Puerto Rico reached this same conclusion in its Notice of Dismissal of charge, when it stated: “The investigation demonstrates ... that the allegations of the charge do not establish a violation of the collective bargaining agreement, but instead an interpretation and application of a Mandatory Decree, whose adjudication corresponds to the courts to decide ...” Notice of Dismissal of Charge, CA-7169, (Labor Relations Board of Puerto Rico, July 20, 1984).

We thus can find no basis or function for arbitration of this dispute. The sole issue here is one as to the intent of the Minimum Wage Board in its Decree providing for computation of liquidation on the basis of eight hours. An arbitrator has authority to resolve only questions of contractual rights; an arbitral decision based “solely upon the arbitrator’s view of the requirements of enacted legislation” has “exceeded the scope of the submission.” Alexander v. Gardner-Denver Co., 415 U-S. 36, 53-54, 94 S.Ct. 1011, 1022-23, 39 L.Ed.2d 147 (1974), quoting United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). Although an arbitrator may be competent to resolve many preliminary factual questions, he may not be competent to decide ultimate legal issues because his expertise “pertains primarily to the law of the shop, not the law of the land.” Gardner-Denver, 415 U.S. at 57, 94 S.Ct. at 1024, quoted in McDonald v. West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984). See also Pagán Rodríguez v. Fundación Hospital, 83 JTS 47, 50 (P.R.1983) (function of the arbitrator is to resolve factual disputes, not those provided for by law).

In a case arising from very similar facts, the First Circuit held that judicial review of the merits of an arbitration award was inappropriate insofar as the arbitrator’s decision rested on a construction of the collective bargaining agreement. Union de Tronquistas L. 901 v. Flagship Hotel Corp., 554 F.2d 8 (1st Cir.1977). The Court effectively left open, however, the scope for judicial review of the arbitrator’s interpretation of the mandatory decree in that case, since the underlying issue there was one of law. Although the pre-arbitration posture of the parties before us differs from the situation where parties have already submitted to arbitration and the Court is asked to set aside the award, we believe the dispositive legal issue of arbitrability of statutory claims — whether Federal or state — is common to both situations. See Barrentine, 450 U.S. 728, at 731, n. 4, 101 S.Ct. 1437, at 1440 n. 4, 67 L.Ed.2d 641 (1981). Because we have found the plaintiffs’ claim to be outside the scope of the arbitration clause, we find it unnecessary to determine whether Mandatory Decree No. 38, a creature of state law, should be entitled to the same kind of accommodation as the Federal statutes which have been held to provide a separate right of action to an aggrieved employee against an employer, even though the employee had submitted a grievance based on the same facts to arbitration. Gardner-Denver, supra, (42 U.S.C. § 2000e et seq.); Barrentine, supra, (29 U.S.C. § 201 et seq.); McDonald, supra, (42 U.S.C. § 1983). Cf. Union de Tronquistas, 554 F.2d at 10-11.

C. Whether plaintiffs claims for Unpaid Wages and Statutory Penalty succeed on the merits:

We now turn to the state claim at issue, deciding on the merits under Commonwealth Law as a court sitting in diversity. Because the Mandatory Decree at issue here is of a “quasi-legislative” character which holds the force of law, see note 6 supra, Puerto Rico law mandates that the rules of interpretation applicable to statutes be used to determine its meaning. Secretary of Labor v. Puerto Rico Cereal Extracts, 83 P.R.R. 259, 262 n. 2 (1961). In addition, mandatory decrees must be construed in harmony with the provisions of the statute authorizing their promulgation, in this case 29 L.P.R.A. 245-246m. Lugo v. Marini, 72 P.R.R. 483, 486 (1951). In determining what the Minimum Wage Board meant by the provision requiring computation of liquidated sick leave on the basis of eight hours, we turn to the guideposts for finding drafters’ intent: legislative history, canons of construction, and administrative interpretation.

In the most recent amendment of the Minimum Wage Act, the Legislature of Puerto Rico reaffirmed its original intent that “one of the fundamental objectives of [the Minimum Wage] Board is the welfare of the workers without hampering the economic development of Puerto Rico by fixing fair and reasonable wages[.]” Statement of Motives, Minimum Wage Act, General Amendment, Act No. 114, July 17, 1979, 1979 Laws of Puerto Rico 266. Authorized in this manner, the Board promulgated Decree No. 38 requiring compensation for certain number of days spent in absence due to sickness. The purpose of this provision was to “bring a certain protection to the employee and his family in case of sickness.” Report, Conclusion of Fact and Draft of Proposed Decree submitted to the Minimum Wage Board by the Minimum Salary Committee for the Transportation Industry,” 30 January 1975, Traslation at 18-19. The purpose of the additional provision requiring liquidation of accrued sick leave in excess of 26 days was to “stimulate the worker to be absent as little as possible from work lowering the problem of absenteeism in the industries in Puerto Rico.” Id. at 19. In keeping with the legislature’s intent, the Committee concluded that “the economic capacity of the industry permits it to absorb the effect which this recommendation will have.” Id. at 18.

We are aware that the literal words of the Decree require the employer to liquidate “the period in excess of said twenty-six (26) days at the rate of eight daily hours multiplied by regular wage rate the employee is earning at the time.” Finding of Fact 2, supra. However, if the strict meaning of the words defeats the manifest legislative intent in enactment of a statute, the intent should prevail. Puerto Rico Cereal Extracts, 83 P.R.R. at 267-68. We see no evidence in the intent expressed by. the legislature or the Board to give an absent worker more pay for days not worked than for those worked, the result which would ensue were plaintiffs’ interpretation of the Decree to prevail. The more reasonable interpretation of the provision is that the Board used an eight-hour standard in light of the eight-hour workday established as the legal workday, 29 L.P. R.A. 271, for such purposes as computing overtime hours. The rather inartful drafting would reasonably be intended to prevent an employee whose workday consists of eight hours from receiving reduced pay of less than eight hours for those days of sick leave accrued in excess of 26 days.

A similar conclusion was reached by the Solicitor of Labor in an Advisory Opinion on the question of whether janitors who worked five, six or seven hour days should be given sick leave and vacation pay based on an eight-hour workday, as literally required by Mandatory Decree No. 89, the decree at issue there. The Solicitor concluded that the compensation to be paid should be “made on the basis of the hours which constitute the daily work-day of the employee, even though those are less than eight (8).” Advisory Opinion No. 10696 issued by Solicitor of Labor of Puerto Rico, 13 July 1979, Translation.

We can find no other reasonable conclusion for the issue before us. The legislature and the Board have taken care to balance the welfare of workers against the needs of the industry. To subject the industry to an arbitrary and unpredictable burden in order to provide employees with a windfall requires an express legislative intent. The legislature of Puerto Rico is well capable of expressing clearly its intent to provide a bonus when it so chooses. See, e.g. 29 L.P.R.A. 501-507 (Christmas Bonus Law). It has not done so with the Minimum Wage laws.

The Minimum Wage Law of Puerto Rico is for the humanitarian protection, not the unjust enrichment of workers. The legal provision of payment for sick leave to employees creates an insurance to secure an income in the event an employee becomes ill. It does not vary the ethical concept that people are paid to work. The employees who take sick leave as a matter of course in the absence of incapacitating illness are committing a fraud and affecting adversely the efficiency of the Puerto Rican work force in general. The legislature of Puerto Rico has assumed that the work ethics of local employees are so poor that they require a bonus as well as ordinary compensation to perform their duties as employees; without such incentive many employees will take sick leave in the absence of incapacitating illness.

We believe that these laws adversely affect the work ethics of employees and consequently lower the efficiency of the Puerto Rican work force to the detriment of the community. The right approach is to create a conscience in the people which would make abhorrent the kind of conduct where an employee accepts sick leave when as a matter of fact he has not suffered any incapacitating illness.

Summary Judgment is hereby GRANTED for the defendant as to plaintiffs’ claims for additional compensation and payment of a statutory penalty.

The Clerk shall enter Judgment accordingly.

SO ORDERED.

      . At the present time, the Seventh Revision (1983) of Mandatory Decree No. 38 is in effect. However, the article of that decree at issue in this lawsuit, Article VIII, reads the same in both revisions.

      . Although the collective bargaining agreement submitted to the Court is dated December 13, 1978 and plaintiffs are claiming compensation for an act of the employer in April 1978, both parties directly refer to the December 1978 agreement in their briefs. The Court thus accepts said agreement as having been stipulated by the parties. See also Order of May 24, 1984 at Part I, 5.

      . Cf. Beauchamp v. Dorado Beach Hotel, 98 P.R.R. 622 (1970) (once the determinative factual issues are decided by the arbitrator, the necessary consequences prescribed by law may be awarded by the arbitrator).

      . The critical distinction between Tronquistas and the instant case consists of the inclusion in the Tronquistas collective bargaining agreement of a provision directly relating to the issue before the arbitrator and the court.

      . The conclusion as to this issue in Union de Tronquistas rested on a rationale which has been effectively overruled by Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981). See also McDonald, 466 U.S. 284, 104 S.Ct. 1799, supra. The First Circuit has not spoken on this issue since Barrentine, and we treat it as an issue reopened for its consideration.

      . Mandatory Decrees of the Minimum Wage Board implement the Minimum Wage Law, 29 L.P.R.A. 245-246m, and have the force of law. Mendoza v. Minimum Wage Board, 74 P.R.R. 695, 702 (1953). See also 29 L.P.R.A. § 245(g).

      . There is no need to address plaintiffs’ claim pursuant to 29 L.P.R.A. 246(b), the Court having decided against plaintiffs' underlying claim for unpaid compensation.


source: Caselaw Access Project

author: SUSAN H. BLACK, District Judge.

license: Public Domain

text:
    L.C. CRAWFORD, Plaintiff, v. GOLD KIST, INC., a foreign corporation, Defendant.
    No. 83-778-Civ-J-14.
    United States District Court, M.D. Florida, Jacksonville Division.
    June 13, 1985.

      Ernest A. Sellers, James W. Prevatt, Airth, Sellers, Lewis & Decker, Live Oak, Fla., for plaintiff.
    George D. Gabel, Jr., Mitchel E. Woodlief, Wahl & Gabel, Jacksonville, Fla., for defendant.
   OPINION

SUSAN H. BLACK, District Judge.

This case was tried before the Court without a jury on March 6 and 7,1985, with closing argument on March 21, 1985. The plaintiff, a farmer, filed his Amended Complaint on November 3, 1983, seeking damages from the defendant merchant who allegedly sold him defective wheat seed. This Court has jurisdiction of this action pursuant to the provisions of 28 U.S.C. § 1332 in that there is complete diversity of citizenship and the amount in controversy exceeds $10,000, exclusive of interest and costs. Count I of the Amended Complaint is an action for breach of implied warranty of merchantability, pursuant to Section 672.314, Florida Statutes; Count II is an action for implied warranty of fitness for a particular purpose, pursuant to Section 672.315, Florida Statutes; Count VII is a common-law action for negligence; and Count IX is an action for breach of good faith obligation, pursuant to Section 671.-203, Florida Statutes. The Court, having considered the exhibits, the briefs of counsel, the testimony at trial, and having observed the demeanor of the witnesses, makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

The Purchase

1. The plaintiff is a farmer residing in Providence, Union County, Florida. He has engaged in a general farming operation since 1973 planting corn, soybeans, rye and watermelons.

2. Defendant Gold Kist, Inc. (hereinafter “Gold Kist”) is a Georgia corporation with its principal place of business in Atlanta, Georgia. Gold Kist is a farm cooperative with more than one hundred retail farm outlets throughout the southeastern United States. Gold Kist is a retailer of farm products, including seed, fertilizer and insecticide. Gold Kist regularly advertises its services to its membership. It represents that its employees are knowledgeable about seed, crop chemicals, and farm practices in the areas where its stores operate.

3. On November 23, 1981, plaintiff purchased seventy-five (75) bushels of Coker 747 wheat seed from Gold Kist’s Farmers’ Mutual Exchange in Lake City (hereinafter “FMX”). This seed is the subject of this litigation.

4. The plaintiff first learned that the FMX in Lake City had wheat seed available for sale in talking to an employee of the FMX, Mr. Dale Dicks who was at the plaintiff’s house on a social visit on approximately November 21, 1981. Mr. Dicks had been a friend of the plaintiff’s family for a number of years.

5. At the time of the sale of the Coker 747 wheat seed, Mr. Dicks’ duties at the FMX were to move the stock around the warehouse, clean up, do a few deliveries, and occasionally man the sales counter.

6. Through Mr. Dicks, plaintiff ordered one hundred fifty (150) bushels of Coker 797. As a favor to the plaintiff, Mr. Dicks drove plaintiff’s truck to the FMX on November 23, 1981, to load the 150-bag order. Upon discovering that the FMX had only seventy-five (75) bags of Coker 797, Mr. Dicks discussed the matter with the Gold Kist assistant manager in the presence of Mr. Vernon Vinzant. Mr. Vinzant has been employed by Gold Kist as manager of the retail sales outlet at Lake City, Florida since 1972. The assistant manager instructed Mr. Dicks to phone the plaintiff and advise him of the shortage of 797 and that the only other wheat in stock was Coker 747.

7. Mr. Dicks phoned the plaintiff and told him Coker 747 was the only wheat seed that Gold Kist had available for sale at that time. The 1981 winter wheat season in Florida was described by one farmer witness as the “great wheat rush.” High demand for winter wheat that year created a shortage of wheat which could be grown in Florida.

8. The plaintiff asked Mr. Dicks if Coker 747 was good seed and Mr. Dicks replied that Gold Kist only handled good products. The plaintiff was not advised by any representative of Gold Kist that Florida was outside Coker 747’s zone of adaptation. See Findings of Fact at paragraph 25 and 26.

9. Dr. Harold Loden, an expert in plant genetics and breeding, testified that a farmer usually relies on his own and other farmers’ experience.

10. The Court finds that the plaintiff relied on his own knowledge when he purchased Coker 747. Though plaintiff had farmed for eight years, the 1981 planting was his first attempt at growing wheat. Prior to purchasing the Coker 747, plaintiff had read about wheat in various trade journals, talked with other farmers regarding the suitability and production of wheat, had the year before combined wheat for other farmers in the area, and had gone to meetings held by the University of Florida Institute on Food and Agricultural Sciences, Florida Cooperative Extension Service (hereinafter “FCES”) regarding the growing of wheat. In addition, the plaintiff had access to information provided by FCES and consultations with FCES experts or with the developers of the wheat seed, Coker’s Pedigreed Seed Company, were available to the plaintiff and other farmers.

11. At one of the extension meetings attended by plaintiff in the fall of 1981, he received a publication of FCES entitled Agronomy Facts, dated August 25, 1981, No. 115. See Defendant’s Exhibit No. 18 (hereinafter “ ‘81 Agronomy Facts”).

12. Prior to buying the Coker 747, plaintiff reviewed the ’81 Agronomy Facts which, while not recommending that seed for Florida planting, reported successful yields in test crops. See Findings of Fact at paragraph 28.

13. At the time of purchase, plaintiff knew that Coker 747 was a late maturity variety of wheat seed that was too late in maturing to fit well in the double cropping system in Florida. He had read the ’81 Agronomy Facts which contained that information regarding the Coker 747 prior to purchasing the wheat.

The Planting

14. Although the seed was purchased in November 1981, plaintiff did not plant it until on or after December 15, 1981, due to the lack of adequate ground moisture.

15. The recommended planting season for wheat in Florida is from November 15 to December 15. FCES found that the best yields come when planted within that time. Waiting until December 15 or later to plant a late maturing variety of wheat, such as Coker 747, increased the farmer’s risk of obtaining an economic yield by at least 50% because of potential problems with vernalization.

16. Vernalization is the process of changing from vegetative growth to reproductive growth. A farmer plants wheat to obtain grain or the wheat seed for sale. If the plant does not vernalize but remains in the vegetative growth stage, it simply produces leaf and does not produce the seed or grain for which it is planted. A plant vernalizes when it receives a sufficient amount of cool temperatures over a period of time which causes it to change from it’s vegetative state to its reproductive state and yield. Vernalization is one of the many factors which directly affect the amount of yield a variety of wheat seed will produce. By planting late, a farmer is missing a month in the growing season and a month’s exposure to cool weather.

17. The plaintiff planted three varieties of wheat seed in December: Coker 797, Coker 747 and Coker 762. All three varieties were planted in the same field in one 140-acre tract. An additional fifty (50) acres was planted solely with 747 and a 35-acre tract was planted with 747. In the field in which all three varieties were planted, 797 was planted on one side of the field, 762 was planted on the other side and 747 was planted between the two. The plaintiff followed the same cultural practices on all fields. The soils of the fields were similar in type and fertility. All fields planted by the plaintiff were subject to the same environmental conditions. All were seeded, fertilized, and sprayed at the same rates. The 797 and 762 produced on average forty-three (43) plus bushels per acre. The 747 did not produce, having failed to vernalize.

18. The defendant’s witness, Dr. R.N. Barnett, is the wheat specialist for the University of Florida. Dr. Barnett testified that the only practices the plaintiff engaged in which were less than optimum were variety selection and using a late planting date. Dr. Barnett stated, however, that the late planting would not have been imprudent if the farmer delayed planting because of inadequate soil moisture.

19. On December 17, 1981, after planting the seventy-five bushels of Coker 747, the plaintiff returned to the FMX in Lake City and purchased another one hundred twenty-five (125) bushels of Coker 747. At that time, plaintiff knew that Coker 747 was the only remaining variety that the FMX had to sell.

The Seed

20. One of the product lines carried by Gold Kist is seed. Gold Kist merchandises a number of varieties of seed of different crops such as corn, soybeans, oats, rye, wheat, millet, and sorghums. Gold Kist distributes seed to the FMX from its seed distribution warehouse which is located at Dublin, Georgia. Gold Kist also has a seed research division and it produces its own seed for sale. It has agronomists on its staff that are periodically available to its local retail outlet managers.

21. In November 1981, Gold Kist had available for sale Coker 747 wheat seed. Coker 747 is a variety of soft winter wheat. It is a proprietary product of Coker Pedigreed Seed Company. Coker bred and developed the wheat seed and under the Plant Variety Protection Act has the exclusive right to control its reproduction and sale.

22. Gold Kist’s practice as regards the sale of seed is to stock and offer for sale to farmers only seeds that are adapted to the area in which its retail store does business.

23. Florida is not within Coker 747’s zone of adaptation.

24. Every variety of seed has a zone of adaptation. The zone of adaptation is the geographical area that has soil and environmental conditions suited for the production of a particular variety.

25. The southern boundary of the zone of adaptation for Coker 747 is two to three hundred miles north of Union and Bradford County, Florida. The zone of adaptation for 747 was determined by its breeder, Coker Pedigreed Seed Company, after ten years of research and development. During that time Coker tested the variety in a number of different states in different years and under numerous different environmental conditions. As a result of its testing, Coker described the zone of adaptation of 747 as follows:

It is generally adapted to the southeast piedmont, north of U.S. Highway 80 in Alabama, Georgia, Mississippi, Louisiana, Arkansas, Tennessee, Kentucky, Virginia and Maryland. It is not recommended for planting in the southeastern coastal plains or the Gulf Coast areas where winter types do not properly vernalize during mild winters. (emphasis added).

26. In addition to the seed manufacturer’s reported zone of adaptation, FCES conducts independent variety trials for the purpose of determining the varieties that perform satisfactorily in Florida. Occasionally, the FCES recommends a variety of wheat seed to be grown in Florida which is outside the zone of adaptability, as is Coker 747. For example, the Agronomy Facts in 1983 recommended one variety of wheat seed, Coker 916, to be grown in Florida, which was outside the zone of adaptability suggested by Coker’s Pedigreed Seed Company. (Tr. at 139).

27. FCES has never placed Coker 747 on its list of seeds recommended for Florida planting. At the time of the sale, however, FCES had not classified Coker 747 as unsuitable for growing in North Florida.

28. Although not recommended for planting in Florida, prior to 1981, Coker 747 had been grown in Florida and had produced an economic yield. According to the ’81 Agronomy Facts, Coker 747 had yielded in a test plot in Quincy, Florida, an average of 66.2 bushels per acre when planted early, and 40.6 bushels when planted late.

29. Mr. Henderson, a farmer and retail- ' er of farm supplies, testified that Coker 747 was a very good yielder for him in the 1980-81 season.

30. Dr. Barnett’s, supra paragraph 18, test results for the 1981-82 growing season for Coker 747 wheat show that the Coker 747 wheat that was planted early, on November 20, 1981, had an economic yield of forty-two (42) bushels per acre. However, the Coker 747 wheat planted on December 18, 1981, about the time the plaintiff planted, showed a yield of only 6.7 bushels which Dr. Barnett characterized as a crop failure.

31. Dr. Harold Loden, an expert in plant genetics and breeding, testified that a farmer generally relies on his own and other farmer’s experiences. Dr. Loden further acknowledged that the information provided in ’81 Agronomy Facts would support the prudency of a seed dealer offering Coker 747 for sale.

32. In addition to selling plaintiff Coker 747 wheat, the FMX in Lake City also sold Coker 747 to several other area farmers, one of whom was Mr. Wayne Snellgrove. Mr. Snellgrove planted his wheat in mid to late November, and the Coker 747 he planted produced what appeared to be a normal yield.

CONCLUSIONS OF LAW

Implied Warranties

The actions based on breach of implied warranties are governed by Chapter 672, Florida Statutes, pertaining to the Uniform Commercial Code treatment of sales. See Section 672.105(1), Florida Statutes. The plaintiff bears the burden of proving the necessary elements of each of his asserted causes of action for breach of implied warranty. See Hoder v. Sayet, 196 So.2d 205, 211 (Fla. 3rd DCA 1967).

Fitness for Particular Purpose

An action for breach of implied warranty of fitness for a particular purpose is defined by Section 672.315, Florida Statutes, which states:

Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.

A plaintiff must prove that the defendant, at the time the sale was made, knew of a particular purpose for which the goods were going to be used and that the plaintiff relied upon the defendant’s skill and judgment when purchasing said product. Fletcher Company v. Melroe Manufacturing Company, 238 So.2d 142 (Fla. 1st DCA 1970).

The first element of a cause of action for breach of implied warranty of fitness for a particular purpose has not been proved. The record does not demonstrate that the plaintiff ever communicated with Gold Kist regarding a particular purpose for the wheat seed. The plaintiff discussed wheat seeds generally with a family friend, Mr. Dicks, who worked in the warehouse of Gold Kist’s FMX. Mr. Dicks merely told the plaintiff which variety of wheat seeds were available for sale at the FMX and offered to place the plaintiff’s order. When Mr. Dicks learned he could not fill the order with the wheat seed requested by the plaintiff, the FMX assistant manager instructed Mr. Dicks to call plaintiff and ask if he would like the balance of his order filled with Coker 747. The plaintiff asked if that seed was satisfactory and Mr. Dicks replied that Gold Kist would only sell good seed. At the second sale on December 17, 1981, the plaintiff knew that only Coker 747 was available so he specifically asked for that seed.

The Court finds that at no time did the plaintiff communicate to Gold Kist that he needed the wheat seed for a particular purpose. In the absence of evidence that Gold Kist had been asked to supply a wheat seed which would satisfy a particular purpose, there can be no breach of the implied warranty of fitness for a particular purpose. Halpryn v. Highland Insurance Company, 426 So.2d 1050 (Fla. 3rd DCA 1983).

The plaintiff has also failed to demonstrate that he relied on Gold Kist’s skill and judgment when purchasing the seed. Gold Kist’s FMX is a retail outlet selling agricultural supplies. As part of its business, Gold Kist advertises that it has an expertise in the area of farming and can be relied upon to give advice on farming products and methods. However, as noted above, the plaintiff did not communicate with Gold Kist and draw upon its expertise. The plaintiff has merely established that the advertised expertise was available, not that it was either drawn upon or relied on in purchasing Coker 747.

In fact, the record demonstrates that, rather than relying on Gold Kist, the plaintiff independently researched the farming of wheat prior to his purchase of Coker 747. See Findings of Fact at paragraphs 10-13. From the information he gathered, including the experiences of other farmers who had grown wheat and the reports of the FCES, the plaintiff selected other types of wheat seed than Coker 747 to plant. He bought Coker 747 only when the other types were unavailable. The Court finds the one resource the plaintiff did not rely on in deciding which seed to plant was Gold Kist.

The plaintiff contends, however, that, despite what his awareness may have been, he had a reasonable expectation that Gold Kist would only sell wheat seed adapted to the Florida area and that he relied upon that reasonable expectation. If Gold Kist were to sell a non-adapted variety, the plaintiff reasons, there was an attendant duty to disclose this fact to the plaintiff. The Court finds that while it would have been preferable for Gold Kist to discuss Coker 747’s limited zone of adaptation with the plaintiff, there was no such duty.

Gold Kist made available for sale various types of wheat seed, including Coker 747, a variety not adapted for planting in Florida. Although not recommended by either Coker or the FCES, Coker 747 had realized successful yields when planted in Florida. Coker 747’s limitations as well as its successes in the state were documented and disseminated to both suppliers and customers of farm products. During the wheat rush of 1981 when wheat seed was scarce, several farmers, including the plaintiff, chose to buy Coker 747, knowing its limitations, and some realized successful yields.

The Court finds in this case that Gold Kist made available for sale a wheat seed variety that, while riskier than others on the Florida market, had the potential for successful yields. Since Gold Kist has demonstrated that Coker 747 had that potential, the focus turns to the individual in the best position to evaluate the variables and assume the risk of planting the seed— the farmer. Having the farmer bear the loss from the failure of a risky but potentially harvestable wheat seed recognizes the realities of farming. The farmer controls the crop and the method of its planting. In the practice of his profession, he must familiarize himself with the seed he plants and the variables such as weather, time of planting, soil condition, and the farmer’s own skills, which directly affect the seed’s yield. Cf Bickett v. W.R. Grace & Company, 12 U.C.C.Rep.Serv. 629, 643 (W.D.Ky.1972). The individual farmer, in the exercise of his skill and judgment in the open marketplace, must choose the seed he believes will realize the most successful yield in light of these variables. If the seed he purchases has a reasonable potential for a successful yield, whether it does so or not is dependent on the myriad choices he has made.

Merchantability

The plaintiff’s cause of action for breach of an implied warranty of merchantability, raised in Count I of the Complaint, is based on Section 672.314(2)(a) and (c), Florida Statutes, which states in part:

(1) Unless excluded or modified (s. 672.-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind____
(2) Goods to be merchantable must be at least such as:
(a) Pass without objection in the trade under the contract description; and
(c) Are fit for the ordinary purposes for which such goods are used.

Coker 747 was purchased by the plaintiff for the ordinary purpose of growing wheat. The fact that Coker 747 is a late maturity variety of wheat seed not recommended for planting in Florida does not support a conclusion that Coker 747 is not fit for the ordinary purpose of raising wheat. As discussed, the experiences of other farmers as well as the test plantings conducted by Dr. Barnett and FCES demonstrate Coker 747 was fit for the ordinary purpose of growing wheat with the potential for an economic yield. The Court finds the Coker 747 purchased by the plaintiff merchantable as defined by Section 672.-314(2)(c), Florida Statutes.

The Court further finds that Coker 747 passed without objection in the trade. Mr. Henderson, so testified; he sold and planted the seed and would do so again. Dr. Barnett testified that, while the dealer should caution a farmer as to Coker 747’s limitations when planted in Florida, selling Coker 747 is acceptable. Dr. Loden, an expert in plant genetics and breeding relied on the fact that Coker 747 could be grown in Florida in determining that a seed dealer could prudently sell Coker 747. In light of the testimony and the previously discussed statistic of the FCES published in the ’81 Agronomy Facts, the Court finds the Coker 747 merchantable as defined by Section 672.314(2)(a), Florida Statutes.

Negligence

The plaintiff alleges in Count VII of the Amended Complaint that Gold Kist breached its duty as a seed retailer to “sell only those seed which can reasonably be expected to produce a commercially reasonable and harvestable crop, given the climatological conditions prevalent in the sales area.” Id. at paragraph 70. The plaintiff has not cited to any statute or case law establishing that such a duty exists.

While a seed dealer may be held liable for negligence when he fails to comply with the requirements of the Federal and Florida Seed Laws, no such violations have been alleged. See e.g., Agricultural Services Association, Inc. v. Ferry-Morse Seed Company, Inc., 551 F.2d 1057 (6th Cir.1977); Hoskins v. Jackson Grain Company, 63 So.2d 514 (Fla.1953). Otherwise, a tort duty to furnish a buyer with an economically effective product as opposed to a safe one can arise when expressly agreed to by the parties or when implied by law. “[T]he duty [however] arises under the law of contract, and not under tort law.” Monsanto Agricultural Products Company v. Edenfield, 426 So.2d 574 (Fla. 1st DCA 1983). The Court finds that the plaintiff has failed to establish an independent cause of action based on negligence. Any implied duty based on the contractual relationship between this vendor/vendee would be governed by the Uniform Commercial Code provisions discussed above. Even if the duty as defined by plaintiff existed, the Court finds that, as discussed above, Coker 747 “can reasonably be expected to produce a commercially reasonable and harvestable crop” in Florida; therefore, the Court finds the duty has not been breached.

Good Faith Obligation

Finally, in Count IX of the Amended Complaint, the plaintiff states that Gold Kist’s “unconscionable conduct in selecting and recommending the use of Coker 747 by [plaintiff], when Gold Kist knew that Coker 747 was not suitable for use in Florida ...” states a cause of action under Section 671.-203, Florida Statutes. Section 671.203 states, “Every contract or duty within this code [Florida U.C.C.] imposes an obligation of good faith in its performance or enforcement.”

As discussed, the plaintiff made only limited attempts to communicate with Gold Kist when the seed was purchased. Prior to purchasing Coker 747, the plaintiff had independently investigated various wheat seeds and, in fact, had selected other varieties to plant. He purchased Coker 747 when wheat seed was scarce and the other varieties were unavailable. In the plaintiffs research, he obtained and reviewed the ’81 Agronomy Facts which, though highlighting Coker 747’s limitations, included its successful yields in Florida. The plaintiff did not rely on Gold Kist’s “selection” or “recommendation” of Coker 747— Gold Kist made none. The plaintiff, having the necessary information before him, decided on Coker 747 when no other seed was available. He then determined to plant late in the season knowing Coker 747 was a late maturing variety of wheat seed. The Court finds no evidence of a lack of good faith on the part of Gold Kist or of a failure to deal fairly with the plaintiff.

The Court finds for the defendant and directs the Clerk of the Court to enter Judgment for the defendant.

      . Originally, the Amended Complaint included the seed manufacturer, defendant Coker’s Pedigreed Seed Company; however, all claims against the manufacturer were dismissed pursuant to the Court granting summary judgment in its favor on January 31, 1985.
      Additionally, defendant Gold Kist, Inc.’s cross-claim against defendant Coker’s Pedigreed Seed Company was dismissed by stipulation of the parties filed on March 6, 1985.

      . The plaintiff's actions for breach of express warranty, appearing in Count III, and for false representations, appearing in Counts IV, V, and VI, were dismissed pursuant to the Court entering a directed verdict as to those counts in favor of the defendant on March 7, 1985.


author: RICE, District Judge.

text:
    Eunice E. ANDREWS, et al., Plaintiffs, v. Verne ORR, Defendant.
    No. C-3-84-445.
    United States District Court, S.D. Ohio, W.D.
    June 14, 1985.

      Irvin J. Zipperstein, Dayton, Ohio, Joseph F. Henderson, Mt. Ranier, Md., for plaintiffs.
    Gerald F. Kaminski, Asst. U.S. Atty., Dayton, Ohio, Elizabeth A. Pugh, U.S. Dept, of Justice, Lt. Col. Perry Anderson, HQS. USAF-JACL, Washington, D.C., for defendant.
   DECISION AND ENTRY SUSTAINING IN PART DEFENDANT’S MOTION TO DISMISS; FURTHER PROCEDURES SET; CONFERENCE CALL SET

RICE, District Judge.

This is an employment discrimination action, which Plaintiffs bring as a class action, seeking redress for what they assert were acts of discrimination committed by their employer, the Defendant. The Plaintiffs are black, civilian employees of the Air Force Logistics Command (“AFLC”) stationed at Wright-Patterson Air Force Base (“WPAFB”). The Plaintiffs allege that they were discriminated against on the basis of their race by the denial of promotions. Plaintiffs base this allegation on the use of the Professional and Administrative Career Examination (“PACE”) by the AFLC to select employees for promotion. Plaintiffs contend that PACE had a disparate impact upon blacks.

This is the third class action, of which this Court is aware, challenging the disparate impact of PACE. The first of these was Luevano v. Campbell, 93 F.R.D. 68 (D.D.C.1981). Subsequently, a class action was commenced in this Court on behalf of all black AFLC employees who sought promotion to professional, administrative or technical jobs prior to January 19, 1982, for which the PACE exam was administered, and who were denied promotional opportunities as a result of Defendant’s use of PACE. Brown v. Orr, 99 F.R.D. 524 (S.D. Ohio 1983). On March 15, 1983, this Court issued its Decision denying class certification in Brown. The Plaintiffs herein took no action at that time. On April 18, 1983, the plaintiff in Brown filed a second motion to certify a class therein. Before this Court ruled on the then pending, second motion to certify, the Plaintiff in Brown settled her individual claim on July 12, 1983, and the cause was dismissed with prejudice. Once again, the Plaintiffs herein took no action with regard to the Brown case. Rather, between July 26 and July 28, 1983, the Plaintiffs herein initiated the administrative process by contacting their EEO counselor.

This cause is now before the Court on Defendant’s Motion to Dismiss. (Doc. # 6). In his motion, the Defendant asserts that this Court lacks subject matter jurisdiction over the Plaintiffs’ individual claims because the Plaintiffs failed to exhaust their administrative remedies within thirty days as required by 29 C.F.R. § 1613.214(a)(l)(i). Additionally, Defendant contends that Plaintiffs’ class action claims are barred by res judicata as a result of this Court’s decision in Brown overruling the motion to certify. The Court will discuss the many issues raised by Defendant’s motion to dismiss Plaintiffs’ individual claims, and then the Court will focus on the issues raised by Defendant’s motion to dismiss the Plaintiffs’ request for classwide relief.

(1) Individual Claims.

At least for purposes of ruling on the present motion, Defendant implicitly concedes that any timeliness requirement imposed upon Plaintiffs by the regulations was tolled during the pendency of the Luevano class action and the Brown class action until March 18, 1983, when this Court overruled the motion to certify in that case. Thereafter, Defendant argues, the timeliness requirement in 29 C.F.R. § 1613.-214(a)(l)(i) became applicable and that Plaintiffs were required to file a complaint with their EEO counselor within thirty days. This, the argument continues, the Plaintiffs did not do. Additionally, Defendant contends that the thirty day requirement contained in § 1613.214(a)(l)(i) is jurisdictional and not subject to equitable tolling.

Plaintiffs argue that they seek classwide relief, and, as a consequence, the regulations regarding claims for classwide relief are applicable. See 29 C.F.R. § 1613.601 et seq. Particularly, Plaintiffs would have the Court apply the ninety day time limit contained in § 1613.602(a). Alternatively, Plaintiffs argue that even if the thirty day time limit contained in § 1613.214(a)(l)(i) applies, it did not begin to run until this Court’s decision overruling the motion to certify became final on September 15, 1983 when the time to appeal that decision expired. See Rule 4(a)(1), Fed.R.App.P. Additionally, Plaintiffs argue that the thirty day requirement of § 1613.214(a)(l)(i) is not jurisdictional; rather, they contend it is subject to equitable tolling.

Thus, this Court is faced with three distinct questions: (1) which time limit set forth in the regulations is applicable; (2) when did the time begin to run; and (3) are the limitations periods set forth in the regulations jurisdictional or are they subject to equitable tolling.

This Court is of the opinion that the thirty day limitation contained in § 1613.-214(a)(l)(i), rather than the ninety day period in § 1613.602(a), is controlling herein. Two independent reasons support this conclusion. First, the regulations implicitly recognize that different members of the same putative class may not repeatedly initiate class actions based on the same conduct. See 29 C.F.R. § 1613.604(b). This is what Plaintiffs attempt herein. The Brown class action did not result in class-wide relief; therefore, the Plaintiffs seek to bring essentially the same class action.

More fundamentally, the only basis for reaching any of the issues presented by Defendant’s motion is to assume, as Defendant does implicitly, that whatever time limitation was applicable, it was tolled during the pendency of the Luevano and Brown class actions. This assumption is grounded in the Supreme Court decisions in American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974) and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983). In American Pipe and Crown Cork & Seal, the Court held that the filing of a class action tolls the running of statutes of limitations. In Crown, Cork & Seal, the Court said:

Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action.

462 U.S. at 354, 103 S.Ct. at 2397. However, courts which have considered the question have consistently held that the statute of limitations is not tolled for purposes of initiating a new class action, see Smith v. Flagship International, 609 F.Supp. 58 (N.D.Tex.1985); Burns v. Ersek, 591 F.Supp. 837 (D.Minn.1984), in order to avoid perpetual tolling of the statute of limitations by the filing of repeated class actions. This Court agrees with those holdings.

Based on the foregoing, the Court concludes that the applicable time limitation for Plaintiffs’ claims is the thirty day period contained in § 1613.214(a)(l)(i), rather than the ninety day period of § 1613.-602(a), even though Plaintiffs purport to bring this action as a class action.

Having so concluded, the Court must next consider what event triggers the running of the thirty day period. As set forth above, Defendant argues that the thirty day period begins to run when this Court overruled the motion to certify the class in Brown. Plaintiffs, on the other hand, argue that the thirty day period began to run when the decision in Brown became final, in other words when the appeal time had run.

The Court agrees with Defendant. American Pipe and Crown, Cork & Seal teach that the statute of limitations is tolled only during the pendency of a motion to certify. See 414 U.S. at 561, 94 S.Ct. at 770; 462 U.S. at 354, 103 S.Ct. at 2397. Thus, the thirty day limitation in § 1613.214(a)(l)(i) began to run on March 15, 1983 when this Court overruled the motion to certify in Brown. Moreover, even if we assume that the filing of the second motion to certify in Brown, on April 18, 1983, once again tolled the running of § 1613.214(a)(l)(i), it began to run again when Brown was dismissed with prejudice on July 12, 1983. This dismissal would not entitle Plaintiffs to a new thirty days. Rather, under the teachings of American Pipe and its progeny, Plaintiffs had to initiate the administrative proceedings required by § 1613.214(a)(l)(i) within whatever remained of the thirty days, following the July 12, 1983 dismissal. 414 U.S. at 561, 94 S.Ct. at 770. Plaintiffs did not begin this process until July 26, 1983. Thus, when one examines the two periods that were not subject to tolling, March 15, 1983 to April 18, 1983 and July 12, 1983 to July 26, 1983, it becomes apparent that Plaintiffs waited more than thirty days to initiate the administrative process. However, Plaintiffs seek refuge in the doctrine of equitable tolling, and it is to a discussion of that doctrine which the Court must now turn.

As stated above, Defendant argues that the timeliness requirement of § 1613.-214(a)(l)(i) is jurisdictional, that it is not subject to equitable tolling. In reaching this argument, Defendant relies on Sims v. Heckler, 725 F.2d 1143 (7th Cir.1984) in which the court reasoned that since Title VII is a waiver of sovereign immunity, it must be narrowly construed. Consequently, the Sims court concluded that the thirty day period in § 1613.214(a)(l)(i) was jurisdictional. With all due respect, this Court disagrees. Recently, in Watts v. Department of the Air Force, Case No. C-3-84-454 (S.D.Ohio), this Court addressed and rejected a similar contention that the time period in 42 U.S.C. § 2000e-16(c) is jurisdictional, stating:

The uncertainty as to the nature of 42 U.S.C. § 2000e-16(c) arises due to the tension between the decision in Zipes v. Trans World Airlines, Inc., 455 U.S. 385 [102 S.Ct. 1127, 71 L.Ed.2d 234] (1982), and the doctrine of sovereign immunity. In Zipes, the Supreme Court held that the statutory time limit of 42 U.S.C. § 2000e5(e) for filing suit against a private employer was not a jurisdictional prerequisite for a federal court action but, rather, that the timeliness requirement was akin to a statute of limitation and thus subject to waiver, estoppel and equitable tolling. The Seventh Circuit, however, in Sims v. Heckler, 725 F.2d 1143 (7th Cir.1984), held that a federal employee’s failure to file a timely administrative charge with the EEOC under 29 C.F.R. § 1613.214(a)(l)(i) barred a later suit. The rationale of the Sims court was that considerations of sovereign immunity made the principles underlying Zipes inapplicable when the defendant is the federal government. 725 F.2d at 1145. Based upon Sims, some federal courts, including the Seventh Circuit in Stuckett v. United States Postal Service, 732 F.2d 158 (7th Cir.1984), cert. den., [— U.S. -] 105 S.Ct. 274 [83 L.Ed.2d 210] (1984), have held 42 U.S.C. § 2000e-16(c) to be jurisdictional.
While the position of the Sims court is certainly a credible one, this Court is mindful of the fact that 42 U.S.C. § 2000e-16(c) was part of the 1972 amendments whereby Congress extended the reach of Title VII to encompass federal employment discrimination. The intent of Congress in so amending Title VII was to give federal employees essentially the same rights and remedies which had been provided to employees in the private sector. H.R.Rep. No. 238, 92d Cong., 2d Sess. reprinted in 1972 U.S.Code Cong. & Adm.News 2157-2160. This Court thus feels the decisions of the Tenth, Eleventh and D.C. Circuits, which have relied upon Zipes in analogizing 42 U.S.C. § 2000e-16(c) to a statute of limitations, to represent the better view of this section. Martinez v. Orr, 738 F.2d 1107 (10th Cir.1984); Milam v. United States Postal Service, 674 F.2d 860 (11th Cir.1982); Saltz v. Lehman, 672 F.2d 207 (D.C.Cir.1982).

Slip op. at 2-4. See also, Neves v. Kolaski, 602 F.Supp. 645 (D.R.I.1985)

Nothing in the present case causes this Court to revisit the conclusion it reached in Watts. On the contrary, the present case reinforces that conclusion. If the Defendants basic premise was correct, the limitation of § 1613.214(a)(l)(i) would not have been tolled during the pendency of the motion to certify in Brown. In Crown, Cork and Seal, the Supreme Court extended its holding of American Pipe (that the statutes of limitations are tolled during the pendency of a motion to certify) to Title VII cases, in part, because the time limitations contained in Title VII are not jurisdictional. See 462 U.S. at 349 n. 3, 103 S.Ct. at 2395 n. 3. If § 1613.214(a)(l)(i) is jurisdictional, then not even the pendency of a motion to certify could toll it, and the Plaintiffs’ claims would have been time barred long ago.

Accordingly, this Court concludes that the period in § 1613.214(a)(l)(i) is subject to equitable tolling. However, this does not mean that the Plaintiffs are necessarily protected by the doctrine. Although the Plaintiffs argue in favor of equitable tolling and make certain oblique references to its application herein, they do not set forth or support with affidavits their theory of equitable tolling with any specificity. Therefore, the Court hereby directs Plaintiffs to file a supplemental memorandum in opposition to the motion to dismiss within thirty days of the receipt of this Decision and Entry. This memorandum must set forth precisely why the limitation contained in § 1613.214(a)(l)(i) was tolled herein, and the Plaintiffs’ contentions must be supported by affidavits or by other evidence. The Defendant shall have twenty days thereafter within which to file a reply memorandum with accompanying documentation.

(2) Class Action Claims.

Defendant moves to dismiss Plaintiffs’ class action claims, arguing that they are barred by the res judicata effect of this Court’s decision in Brown, overruling the motion to certify, which was not appealed. The Court agrees with Defendant that Plaintiffs may not assert their class action claims herein; however, the Court reaches its conclusion by a different route. Therefore, the Court finds it unnecessary to travel the path of res judicata.

In the discussion of Defendant’s motion to dismiss as it relates to the Plaintiffs’ individual claims, this Court concluded that the claims were governed by the administrative regulations relating to individual actions rather than class actions. In part, the Court reached this Conclusion because the tolling principle enunciated in American Pipe and Crown, Cork & Seal applies only to the initiation of a new personal action and not a new class action. Thus, the time limitation, imposed upon Plaintiffs by the regulations, for requesting classwide relief, as opposed to merely personal relief, was not tolled during the pendency of the motion to certify in Brown. Therefore, the Plaintiffs’ claims for classwide relief were long ago time barred. Accordingly, the Court hereby orders Plaintiffs’ claims for classwide relief dismissed.

(3) Conclusion.

Based on the foregoing, the Court hereby sustains Defendant’s Motion to Dismiss in part and defers ruling on same in part. The Court dismisses Plaintiffs’ claims for classwide relief and defers ruling on Plaintiffs’ individual claims for relief until the completion of the procedures which the Court set forth above. Furthermore, the Court has set a conference call at 1:10 p.m. on Tuesday, June 25, 1985, for the purpose of setting a trial date and other dates necessary to the ultimate resolution of this dispute.

      . This second motion to certify in Brown limited the class to employees at WPAFB, precisely the same class as the Plaintiffs seek to represent herein.

      . Section 1613.214(a)(l)(i) provides:
      (a) Time Limits. (1) An agency shall require that a complaint be submitted in writing by the complainant or his representative and be signed by the complainant. The complaint may be delivered in person or submitted by mail. The agency may accept the complaint for processing in accordance with this subpart only if:
      (i) The complainant brought to the attention of the Equal Employment Opportunity Counselor the matter causing him to believe he had been discriminated against within 30 calendar days of the date of that matter, or, if a personnel action, within 30 calendar days of its effective date____

      . Section 1613.604(b) provides, in part:
      (b) The Complaints Examiner may recommend that the agency reject the complaint, or a portion thereof, for any of the following reasons:
      (2) It consists of an allegation identical to an allegation contained in a previous complaint filed on behalf of the same class which is pending in the agency or which has been resolved or decided by the agency.

      . The Court rejects any suggestion by Plaintiffs that the thirty day period was tolled after the Court granted permission to the Plaintiff to file a second motion to certify on March 25, 1985 and before the Plaintiff therein actually filed same on April 18, 1983. During that period, no motion to certify was pending in this Court.