James A. Long v. Anthony M. Frank, Postmaster GeneralJames A. Long v. Anthony M. Frank, Postmaster General
- Reporters:
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- Before:
- Walker
This appeal requires us to consider whether the statute of limitations applicable to civil actions by federal employees under Title VII of the Civil Rights Act of 1964,
This litigation has a lengthy history dating back to Long’s 1982 discharge from his job with the Postal Service, followed by his decision to bring suit alleging that the Postal Service discharged him in violation of his civil rights. This history has been recounted elsewhere, see Long v. Frank, 808 F.Supp. 961 (E.D.N.Y.1992) (“Long I ”), on reh’g, 813 F.Supp. 969 (E.D.N.Y.1993) (“Long II”), and we will focus only on those facts relevant to this appeal. We hold that the statute of limitations applicable to Title VII civil actions by federal employees applies to analogous suits under ADEA and accordingly affirm the judgment of the district court.
BACKGROUND
In July 1982, the Postal Service issued Long a Notice of Proposed Removal (the “Notice”) that stated that Long was being discharged because he allegedly assaulted a fellow employee earlier that month. The Postal Service advised Long of his right to respond to the Notice and his right to file a grievance pursuant to a collective bargaining agreement between the Postal Service and Long’s union. After considering Long’s response to the allegations against him, the Postal Service issued a Letter of Decision informing him that he would be dismissed, but that he had a right to appeal the decision to the Merit Systems Protection Board (the “MSPB”).
In August 1982, Long filed an appeal with the MSPB, a grievance pursuant to the collective bargaining agreement, and an Equal Employment Opportunity complaint against the Postal Service alleging that his discharge was based on race, color, age, and reprisal discrimination. On April 19,1983, the MSPB ordered the Postal Service to reinstate Long. Although it found that Long’s dismissal was not the result of discrimination, the MSPB determined that based on the equities of Long’s case, a thirty day suspension, instead of discharge, was the appropriate sanction. The MSPB also denied Long’s application for attorney’s fees as untimely. Long then appealed the MSPB’s decision to the Equal Employment Opportunity Commission (the “EEOC”) to challenge the finding that his discharge was not based on illegal discrimination.
More than two years later, on September 20, 1985, the EEOC determined that Long was a victim of race/color and reprisal discrimination, but not age discrimination. The EEOC ordered the Postal Service to pay Long back pay for the thirty days he had been suspended pursuant to the MSPB order plus attorney’s fees. On December 19, 1986, upon the Postal Service’s request to reopen, the EEOC modified its order slightly with respect to the disciplinary measures to be taken against the “alleged discriminating official,” but did not alter Long’s relief.
On June 12, 1987, in light of the EEOC’s decision, the MSPB reconsidered its earlier order denying Long’s untimely application for attorney’s fees, and ordered the Postal Service to pay Long attorney’s fees totaling $6,525. By September 1987, the Postal Service had complied in full with both the EEOC’s and the MSPB’s orders.
Long then commenced litigation before the MSPB to determine who, as between Long and his attorney, should have received the attorney’s fee award, and whether Long was entitled to missed overtime back pay for the
In November 1990, Long filed the present ADEA action seeking the same relief he sought before the MSPB: a judgment that the attorney’s fee award should have been paid directly to him, and that he is entitled to overtime back pay. In response to the Postr ál Service’s motion for summary judgment the district court initially ruled that Long’s attorney’s fee claim was barred by
res judi-cata,
but that his overtime back pay claim was not precluded by
res judicata
because the Federal Circuit’s decision did not address the merits of that claim.
Long I,
808 F.Supp. at 966-07. The district court also held
sua sponte
that the overtime back pay award was not barred by the statute of limitations.
Id.
at 967. On reargument, the court reconsidered its statute of limitations holding and ruled that Long’s ADEA claims were barred in their entirety by the limitations period applicable to Title VII actions by federal employees,
DISCUSSION
I. Statute of Limitations
A federal employee claiming age discrimination has the option of bringing suit in federal court in the first instance, or of pursuing administrative remedies before the EEOC and then suing in federal court if not satisfied with the administrative results.
See
Federal courts are divided on the issue of the appropriate statute of limitations to apply to ADEA civil actions brought by federal employees after administrative remedies are complete.
Compare Lavery v. Marsh,
918 F.2d 1022, 1025-27 (1st Cir.1990);
Strazdas v. Baker,
689 F.Supp. 310, 312 (S.D.N.Y.1988);
Healy v. United States Postal Serv.,
677 F.Supp. 1284, 1289-90 (E.D.N.Y.1987) (all borrowing thirty day limitations period applicable to Title VII actions)
with Lubniewski v. Lehman,
891 F.2d 216, 221 (9th
Cir.1989)
(applying six year catch-all period of
A major factor motivating our discussion in
Bomholdt
was the perception that while “borrowing” ordinarily is the appropriate mode of statutory construction with respect to unexpressed statutes of limitations, it might not be the proper method in suits against the federal government.
Bomholdt,
869 F.2d at 64. We reasoned that with respect to federal causes of action against private entities, borrowing was necessary because there is no general statute of limita
Subsequent to our decision in Bomholdt, however, the Supreme Court indicated that borrowing is appropriate in ADEA suits against the federal government, although the Court did not decide specifically which limitations period should apply. See Stevens, 500 U.S. at 7, 111 S.Ct. at 1567. We must now address the question left open by the Supreme Court in Stevens and this court in Bomholdt, and decide which of the available statutes is most analogous to the ADEA, and therefore most appropriate for borrowing.
It is beyond dispute that the provisions of the ADEA are analogous to, and indeed were “patterned after,” Title VII. See Lehman v. Nakshian, 453 U.S. 156, 163-64, 101 S.Ct. 2698, 2703, 69 L.Ed.2d 548 (1981); Bornholdt, 869 F.2d at 65. Both statutes share the common purpose of eliminating discrimination in the workplace, Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979), and several circuit courts, including this court, have interpreted the ADEA by comparison to analogous provisions of Title VII. See Rebar v. Marsh, 959 F.2d 216, 218 n. 5 (11th Cir.1992) (collecting eases); Bornholdt, 869 F.2d at 65 (same).
The only factor that counsels against fixing the ADEA statute of limitations by reference to Title VII, and the one that influenced our discussion in
Bornholdt,
is that Congress eliminated an identical thirty day provision from an earlier draft of
As we noted in
Bomholdt,
the two most likely candidates for borrowing besides Title VII would be inappropriate for federal ADEA suits. 869 F.2d at 64-65. The two year limitations period applicable to private ADEA actions (three years for willful violations) is not fit for borrowing because the legislative history makes clear that
Furthermore, while these factors provide an independent justification for borrowing the Title VII limitations period, it is significant that the EEOC — the agency responsible for enforcing the ADEA — has since our decision in
Bomholdt
amended its regulations to apply the same limitations period to federal claims under the ADEA as applies under Title VII.
See
Applying that limitations period to this case, we must find Long’s ADEA claim time-barred. Although the Civil Rights Act of 1991 extended the Title VII limitations period from thirty to ninety days, the thirty day period applied when Long filed this suit in November 1990. See Long II, 813 F.Supp. at 972 n. 1. While we have held that amendments contained in the Civil Rights Act do not apply retroactively, see Butts v. City of N.Y. Dep’t of Housing Preservation & Dev., 990 F.2d 1397, 1411 (2d Cir.1993), that issue is irrelevant to the decision of this appeal. Since the last action taken by the EEOC on Long’s age discrimination claim occurred on December 19, 1986, nearly four years before Long’s complaint was filed, the present action was untimely under either limitations period whether it be thirty or ninety days.
II. Equitable Tolling
We next address whether Long is entitled to equitable tolling of the statute of limitations. Under the doctrine of equitable tolling, a complainant may be allowed to file his or her claim outside the applicable limitations period if, because of some action on the defendant’s part, the complainant was unaware that the cause of action existed. See Dillman v. Combustion Eng’g, Inc., 784 F.2d 57, 60 (2d Cir.1986). The doctrine of equitable tolling “was developed in the context of actions based on fraud,” but “has been applied in eases alleging causes of action other than fraud where the facts show that the defendant engaged in conduct, often itself fraudulent, that concealed from the plaintiff the existence of the cause of action.” Cerbone v. International Ladies’ Garment Workers’ Union, 768 F.2d 45, 48 (2d Cir.1985).
As a threshold matter, we note that equitable tolling applies in cases where the federal government is a party defendant unless Congress expresses its intent to the contrary. Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96, 111 S.Ct. 453, 457, 112 L.Ed.2d 435 (1990). Because suits against the government involve a waiver of sovereign immunity, however, “it is evident that no more favorable tolling doctrine may be employed against the Government than is employed in suits between private litigants.” Id. at 96, 111 S.Ct. at 458; see also United States v. RePass, 688 F.2d 154, 158 (2d Cir.1982).
The equitable tolling issue arises in this case because ambiguity in the EEOC’s decision denying Long’s age discrimination claim may have led him to believe he had six years in which to file a civil action. The relevant portion of the notice read:
If any of your claims were based on the Age Discrimination In Employment Act of 1967 (29 U.S.C. § 633a ), AS TO THOSE CLAIMS ONLY, you MAY have up to six years after the right of action first accrued in which to file a civil action.
While the EEOC notice is not “a model of clarity,”
Lavery,
918 F.2d at 1028, equitable tolling is not warranted on the facts of this case. The EEOC notice informs claimants that they “MAY” have up to six years to file an ADEA civil action. The uncertainty reflected in the notice stems from the inconsistency in the case law between the circuits, and within each circuit. As the First Circuit noted in
Lavery
construing a similar notice, a claimant in the Ninth Circuit might have up
CONCLUSION
We hold that the district court correctly applied the analogous limitations period of Title VII to Long’s ADEA claim, and that the court properly declined to grant equitable relief in this case. Accordingly, the judgment of the district court is affirmed.