SHERRY J. OSHIVER Appellant, vs. LEVIN, FISHBEIN, SEDRAN & BERMAN Appellee.
No. 93-1366
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
November 7, 1994
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 92-07288) ARGUED OCTOBER 25, 1993
BEFORE: BECKER, ROTH and LEWIS, Circuit Judges.
23 South Valley Road
Post Office Box 494
Paoli, PA 19301
Attorney for Appellant
Patrick W. Kittredge (ARGUED)
Kittredge, Donley, Elson, Fullem & Embick
421 Chestnut Street
Fifth Floor
Philadelphia, PA 19106
Attorneys for Appellee
OPINION OF THE COURT
LEWIS, Circuit Judge.
Appellant Sherry J. Oshiver brought suit against the Philadelphia law firm of Levin, Fishbein, Sedran & Berman, where she had been employed as an attorney, claiming violations of both Title VII and the Pennsylvania Human Relations Act. This is an appeal from the district court‘s dismissal of Oshiver‘s complaint, upon the law firm‘s motion, on the ground that Oshiver‘s claims were time-barred. We will affirm the district court‘s dismissal of Oshiver‘s discriminatory failure to hire claim, and reverse the district court‘s dismissal of Oshiver‘s discriminatory discharge claim.
I.
Oshiver, who had applied for a position as an associate attorney at Levin, Fishbein, Sedran, & Berman (the “firm“) in May, 1989, was instead hired as an hourly attorney, having been informed that there were no salaried positions available at that time. When she was hired, however, she was also advised by the firm that she would be considered for an associate position if and when an opening occurred.
In January, 1991, having been unable to secure employment since her dismissal, Oshiver applied for unemployment compensation benefits. At a benefits hearing on May 21, 1991, Oshiver learned that shortly after her dismissal, a male attorney had been hired by the firm to take over her duties as an hourly employee. Nearly six months after acquiring this information, on November 8, 1991, Oshiver filed administrative complaints with the Pennsylvania Human Relations Commission (“PHRC“) and the Equal Employment Opportunity Commission (“EEOC“) alleging that her dismissal was the product of gender discrimination.
In January, 1992, Oshiver learned that the firm had hired a male attorney as an associate in May of 1991, without notifying her that an associate position had opened. The firm‘s failure to hire her as an associate, according to Oshiver, constituted an additional instance of gender discrimination. Thus, Oshiver amended her administrative complaints in early April, 1992, to include a claim of discriminatory failure to hire.
On September 28, 1992, the EEOC issued Oshiver a right to sue letter, and on December 21, 1992, she filed a complaint in the United States District Court for the Eastern District of Pennsylvania alleging discrimination under
The district court granted the firm‘s motion to dismiss Oshiver‘s complaint, holding that her federal claims were time-barred because the statutory limitations period had begun to run on April 10, 1990, the day the firm dismissed Oshiver; on that day, the court concluded, Oshiver knew or had reason to know that an alleged discriminatory act had occurred. The district court refused to apply the doctrine of equitable tolling to excuse Oshiver‘s failure to file her EEOC charge timely, finding nothing in Oshiver‘s complaint to suggest that the law firm had misled her respecting her cause of action.
In reviewing the district court‘s dismissal of Oshiver‘s claims of discrimination, we are called upon to balance the relevant statutorily mandated deadlines against certain tolling doctrines that might apply to extend them.
II.
We have jurisdiction over this appeal under
III.
As noted above, the timeliness of Oshiver‘s administrative complaints is the key issue before us. Oshiver claims that her charges under Title VII were timely brought because the statutory limitations period did not begin to run until May 21, 1991, when she first discovered that the firm had hired a male attorney to assume her former duties as an hourly employee. Therefore, Oshiver argues, her filing on November 8, 1991, was timely. The firm disagrees, as did the district court. In the firm‘s view, the statute of limitations began to run on the date of Oshiver‘s termination, April 10, 1990, thus rendering Oshiver‘s administrative complaints untimely.
Title VII, like the PHRA, allows a plaintiff to bring suit within 180 days after the alleged act of discrimination; however, if the plaintiff initially filed a complaint with a state or local agency with authority to adjudicate the claim, he or she is allotted 300 days from the date of the alleged discrimination within which to file a charge of employment
There are two doctrines which might apply in this case to extend the time period Oshiver had in which to file her charges of discrimination: the discovery rule and the equitable tolling doctrine. As the Seventh Circuit observed in Cada v. Baxter Healthcare Corp., 920 F.2d 446 (7th Cir. 1990), these theories, and their application, invite confusion. We will first
A. The Discovery Rule
We begin with the discovery rule.5 As a general rule, the statute of limitations begins to run when the plaintiff‘s cause of action accrues. Cada, 920 F.2d at 450. As the court in Cada noted, the accrual date is not the date on which the wrong that injures the plaintiff occurs, but the date on which the plaintiff discovers that he or she has been injured. Id. There will, of course, be times when the aggrieved person learns of the alleged unlawful employment practice, for example, at the very moment the unlawful employment practice occurs; in such cases the statutory period begins to run upon the occurrence of the alleged unlawful employment practice. However, there will also be occasions when an aggrieved person does not discover the occurrence of the alleged unlawful employment practice until some
A claim accrues in a federal cause of action as soon as a potential claimant either is aware, or should be aware, of the existence of and source of an injury. See Keystone Insurance Co. v. Houghton, 863 F.2d 1125, 1127 (3d Cir. 1988) (stating this general proposition in the context of determining the accrual date of a RICO cause of action). A different rule, we have noted, would require an insufficient degree of diligence on the part of the potential claimant. Keystone Insurance, 863 F.2d at 1127. With specific regard to Title VII claims, and in a similar vein, the United States District Court for the District of Delaware observed that the limitations period for Title VII claims begins to run, under federal law, “‘when the plaintiff knows or reasonably should know that the discriminatory act has
The question arises whether a plaintiff‘s discovery of the actual, as opposed to the legal, injury is sufficient to trigger the running of the statutory period. In other words, does the statutory period begin to run upon a plaintiff‘s learning that he or she has been discharged from employment, for example, or does it begin to run only after a plaintiff comes to realize that the discharge constituted a legal wrong? We have in the past stated that a claim accrues in a federal cause of action upon awareness of actual injury, not upon awareness that this injury constitutes a legal wrong. See Keystone Insurance, 863 F.2d at 1127. See also Bohus, 950 F.2d at 924-25 (In order for a claim to accrue, “[t]he plaintiff need not know the exact medical
B. Equitable Tolling
1.
We preface our analysis of the equitable tolling doctrine with the observation that the time limitations set forth in Title VII are not jurisdictional. See Hart v. J.T. Baker Chemical Co., 598 F.2d 829, 831 (3d Cir. 1979). These time limitations are analogous to a statute of limitations and are, therefore, subject to equitable modifications, such as tolling. Id. Such treatment of Title VII‘s time limitation provisions is in keeping with our goal of interpreting humanitarian legislation in a humane and commonsensical manner so as to prevent unnecessarily harsh results in particular cases. Id.
Where the filing requirements are considered “jurisdictional,” non-compliance bars an action regardless of the equities in a given case. Thus equitable tolling could not be invoked where, for example, the employer prevented the employee from asserting his or her rights by actively concealing or misleading the discharged employee as to the true reasons for the discharge. We conclude therefore that the timing provisions should be subject to a similar type of equitable tolling as is applied to statutes of limitations.
Equitable tolling functions to stop the statute of limitations from running where the claim‘s accrual date has already passed. Cada, 920 F.2d at 450. We have instructed that there are three principal, though not exclusive, situations in which equitable tolling may be appropriate: (1) where the defendant has actively misled the plaintiff respecting the plaintiff‘s cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum. School District of City of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir. 1981) (quoting Smith v. American President Lines, Ltd., 571 F.2d 102, 109 (2d Cir. 1978)); see also Miller v. Beneficial Management Corp., 977 F.2d 834, 845 (3d Cir. 1992) (citation omitted).6
The Meyer and Hart cases are helpful in our present endeavor to sketch the contours of the equitable tolling doctrine insofar as it applies to cases involving alleged employer deception.
We affirmed the district court‘s refusal to apply the equitable tolling doctrine, finding that all of the facts upon which Hart‘s charge of discrimination was predicated were known to her on the date of her discharge. Id. at 833.
As a result, it cannot be said that the district court erred in deciding that at the time of plaintiff‘s discharge, her suspicions were sufficient to lead a reasonable person to inquire further into the reasons for her discharge. Accordingly, the district court committed no reversible error in declining to toll the filing requirements of Title VII.
Id. at 834. We also expressed concern over the extended period between Hart‘s discharge and her first contact with the EEOC, a period of 421 days. In the absence of evidence that the defendant employer had contributed to Hart‘s delay in filing, it could be “extremely unfair,” we reasoned, to require the employer to defend against Hart‘s lawsuit. Id.
The Plaintiff in Meyer was 61 years old when he was discharged. Suspecting age discrimination, Meyer contacted his former employer shortly after his termination and sought the
We reversed the district court‘s summary dismissal of Meyer‘s ADEA claim. We found that he had alleged acts on the part of the employer that, taken as alleged, could persuade a court to activate the doctrine of equitable tolling. We then emphasized the differences between Meyer and Hart:
In Hart, plaintiff-employee suspected at the time of her dismissal that gender may have played an operative factor in the discharge. She did not file the required charge letter, however, until 477 days after the discriminatory act allegedly took place. The applicable limitation period had been 180 days. In affirming the district court‘s rejection of the equitable tolling claim, we noted that “the facts upon which her charge was predicated were known to her on the date of the discharge.” In short, plaintiff simply did not allege that defendant had anything to do with her untimeliness. The court observed that, had plaintiff inquired into the reasons for her dismissal and then alleged that she had been deceived, an entirely different issue would have been
presented. Here, however, plaintiff Meyer alleges precisely what the plaintiff in Hart failed to allege: that defendants deceived him into postponing the filing of a claim. Here, too, plaintiff did precisely what the Hart court suggests: he asked defendants for an explanation of his dismissal.
Id. at 308 (citation omitted) (emphasis supplied).
2.
We next address the important question concerning the amount of time a plaintiff is afforded in which to file an otherwise untimely charge or complaint when equitable tolling is activated by the defendant employer‘s deception regarding the plaintiff‘s cause of action. We have not, prior to this case, provided an answer.
We begin by restating the fundamental rule of equity that a party should not be permitted to profit from its own wrongdoing. This basic principle underlies the equitable tolling doctrine itself. See Miklavic v. USAir Inc., 21 F.3d 551, 557 (3d Cir. 1994). To allow a defendant to benefit from the statute of limitations defense after intentionally misleading the plaintiff with regard to the cause of action, thereby causing the plaintiff‘s tardiness, would be “manifestly unjust.” Cf. Miklavic, 21 F.3d at 557. See also LaVallee Northside Civic Ass‘n v. Coastal Zone Management, 866 F.2d 616, 625 (3d Cir. 1989) (stating that equitable tolling is based on the equitable principle that, having unfairly lulled the plaintiff into inaction, the defendant may not profit by such wrongful conduct through invocation of the statute of limitations defense).
In Reeb, the plaintiff, a woman, was employed by Economic Opportunity of Atlanta (the “EOA“). The EOA terminated Reeb‘s employment, citing a “limitation of funds” as the reason. Reeb, 516 F.2d at 926. Nearly seven months later, Reeb learned that soon after dismissing her, the EOA had given her former position to an allegedly less qualified male employee. Upon learning of her replacement, Reeb filed charges of gender discrimination with the EEOC. The district court dismissed the case on the ground that Reeb had failed to file her administrative complaint within ninety days of the alleged
[I]t is alleged that the EOA actively sought to mislead Mrs. Reeb in informing her that adequate funds for her program would no longer be available. It is further alleged that the facts that would alert a reasonable person to the unlawful discrimination only became known to the plaintiff more than six months after the discriminatory act. . . . In these circumstances we apply the familiar equitable modification to statutes of limitation: the statute does not begin to run until the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his [or her] rights.
Thus, where the plaintiff has been actively misled regarding the reason for his or her discharge, the equitable tolling doctrine provides the plaintiff with the full statutory limitations period, starting from the date the facts supporting the plaintiff‘s cause of action either become apparent to the plaintiff or should have become apparent to a person in the plaintiff‘s position with a reasonably prudent regard for his or her rights. The appropriateness of this rule, as a matter of equity, can be illustrated by reference to Cada.
[I]f fraudulent concealment [i.e., equitable estoppel] is shown[,] the court must subtract from the period of limitations the entire period in which the tolling condition is in effect, for otherwise the defendant would obtain a benefit from his [or her] inequitable conduct[. However,] it is not at all clear that equitable tolling -- a doctrine that adjusts the rights of two innocent parties -- is as generous. . . We do not think equitable tolling should bring about an automatic extension of the statute of limitations by the length of the tolling period. . . It is, after all, an equitable doctrine. It gives the plaintiff extra time if he [or she] needs it. If [the plaintiff] doesn‘t need it there is no basis for depriving the defendant of the protection of the statute of limitations. Statutes of
limitations are not arbitrary obstacles to the vindication of just claims . . . they protect important social interests in certainty, accuracy, and repose. When we are speaking not of equitable estoppel but of equitable tolling, we are (to repeat) dealing with two innocent parties and in these circumstances the negligence of the party invoking the doctrine can tip the balance against its application. . . .
We agree that where the plaintiff‘s failure to file timely cannot be attributed to any inequitable conduct on the part of the defendant, an automatic extension of the statute of limitations by the length of the tolling period does not make sense as a matter of equity. However, such an automatic extension makes eminent equitable sense where the defendant has, by deceptive conduct, caused the plaintiff‘s untimeliness.
C.
By way of summary, the discovery rule and the equitable tolling doctrine are similar in one respect and different in another. The doctrines are similar in that each requires a level of diligence on the part of the plaintiff; that is, each requires the plaintiff to take reasonable measures to uncover the existence of injury. See Keystone Insurance, 863 F.2d at 1127 (making this point with regard to the discovery rule); Reeb, 516 F.2d at 930 (making this point with regard to equitable tolling). The plaintiff who fails to exercise this reasonable diligence may lose the benefit of either doctrine. The two doctrines differ, however, with respect to the type of knowledge or cognizance that triggers their respective applications. The discovery rule keys
III.
We now apply the discovery rule and the doctrine of equitable tolling to Oshiver‘s claims.
With regard to Oshiver‘s claim of discriminatory discharge, we have no difficulty in concluding that for purposes of the discovery rule, Oshiver “discovered” the injury on April 10, 1990, the very date defendant law firm informed her of her discharge. Simply put, at the moment the law firm conveyed her dismissal to her, Oshiver became aware (1) that she had been injured, i.e., discharged, and (2) that this injury had been caused by another party‘s conduct. That Oshiver may have been deceived regarding the underlying motive behind her discharge is irrelevant for purposes of the discovery rule. See Keystone Insurance, 863 F.2d at 1127.
Having discovered the injury associated with her alleged wrongful discharge on April 10, 1990, it is clear that the discovery rule offers Oshiver no relief in relation to the timeliness of the filing of her discriminatory discharge claim. This filing occurred on November 8, 1991. Oshiver‘s wrongful discharge action accrued on April 10, 1990. Oshiver waited some 440 days before filing her administrative complaint, or too long by some 140 days.9
B.
We now apply the doctrine of equitable tolling to Oshiver‘s discriminatory discharge claim.10
We offer no view as to whether Oshiver will derive ultimate benefit from the equitable tolling doctrine in relation to her wrongful discharge claim. The factual questions remain (1) whether the firm effectively misled Oshiver with respect to her discriminatory discharge cause of action; (2) if so, whether a person such as Oshiver, with a reasonably prudent regard for her rights, would have been misled by the firm‘s communication; and (3) if so, whether a person in Oshiver‘s position with a reasonably prudent regard for her rights would have learned of the firm‘s deception sooner. These factual inquiries must be undertaken before a proper resolution of the equitable tolling issue can reached.
We wish to make clear, however, that the purpose of and the remedy afforded by the equitable tolling doctrine, at least insofar as it applies in cases involving defendant employer deception, are understood properly only in light of the equitable principle which underlies the doctrine, namely, that one should not be permitted to benefit from his or her own wrongdoing. See Reeb, 516 F.2d at 930 (“‘Deeply rooted in our jurisprudence, this principle has been applied in many diverse classes of cases by both law and equity courts and has frequently been employed to bar inequitable reliance on statutes of limitations.‘“) (quoting Glus v. Brooklyn Eastern District Terminal, 1959, 359 U.S. 231, 232-33 (1959)); Miklavic v. USAir, Inc., 21 F.3d at 557. Our conclusion that the equitable tolling doctrine tolls the initial
IV.
For the reasons stated above, we will affirm the district court‘s dismissal of Oshiver‘s discriminatory failure to hire claim pursuant to
Notes
A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred . . . except that in a case of unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred. . . .