Oshiver v. Levin, Fishbein, Sedran & Berman ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
11-7-1994
Oshiver v. Levin, Fishbein, Sedran & Berman
Precedential or Non-Precedential:
Docket 93-1366
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994
Recommended Citation
"Oshiver v. Levin, Fishbein, Sedran & Berman" (1994). 1994 Decisions. Paper 179.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/179
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1994 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 93-1366
___________
SHERRY J. OSHIVER
Appellant,
vs.
LEVIN, FISHBEIN, SEDRAN & BERMAN
Appellee.
___________
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.
(Filed November 7, 1994)
___________
William L. McLaughlin, Jr. (ARGUED)
23 South Valley Road
Post Office Box 494
Paoli, PA 19301
Attorney for Appellant
Christine C. Fritton
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.
On April 10, 1990, Oshiver was dismissed with the
explanation that the firm did not have sufficient work to sustain
her position as an hourly employee at that time, but that the
firm would contact her if either additional hourly work or an
associate position became available.
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 Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. ("Title VII") and
the Pennsylvania Human Relations Act.
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 28 U.S.C.
§ 1291. Since this is an appeal from a district court's
dismissal pursuant to Rule 12(b)(6), we exercise plenary review.
Ditri v. Coldwell Banker Residential Affiliates, Inc., 954 F.2d
869, 871 (3d Cir. 1992).1 We accept all facts pleaded as true
1
. While the language of Fed.R.Civ.P. 8(c) indicates that a
statute of limitations defense cannot be used in the context of a
Rule 12(b)(6) motion to dismiss, an exception is made where the
complaint facially shows noncompliance with the limitations
period and the affirmative defense clearly appears on the face of
the pleading. See Trevino v. Union Pacific Railroad Co., 916
F.2d 1230 (7th Cir. 1990); 5A Wright and Miller, Federal Practice
and Procedure: Civil 2d, § 1357.
and draw all reasonable inferences in favor of the plaintiff,
D.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d
1364, 1367 (3d Cir. 1992), focussing on the pleadings2 to
determine whether the plaintiff has stated a claim upon which
relief may be granted.
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
2
. We may also consider matters of public record, orders,
exhibits attached to the complaint and items appearing in the
record of the case. 5A Wright & Miller, Federal Practice and
Procedure: Civil 2d, § 1357; Chester County Intermediate Unit v.
Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990).
discrimination with the EEOC. 42 U.S.C. § 2000e-5(e).3
Therefore, since Oshiver filed a complaint with the PHRA, she had
300 days after the alleged act of discrimination in which to
bring a charge with the EEOC. See Davis v. Calgon Corp., 627
F.2d 674, 675 (3d Cir. 1980) (per curiam) (300-day limitations
period applied even though plaintiff's filing with state agency
was untimely).4
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
3
. 42 U.S.C. § 2000e-5(e) states, in pertinent part:
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. . . .
42 U.S.C. § 2000e-5(e).
4
. While Davis was brought under the Age Discrimination in
Employment Act of 1967 ("ADEA"), Title VII and the ADEA have been
given parallel constructions due to their similarities in purpose
and structure. Kocian v. Getty Refining & Marketing Co., 707
F.2d 748, 752 n.3 & n.4 (3d Cir. 1983). See also Oscar Mayer &
Co. v. Evans, 441 U.S. 750, 756 (1979).
discuss each of these doctrines and then apply them in turn to
determine whether Oshiver timely filed her discrimination claims.
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
5
. Because the discovery rule's origins are in products
liability and medical malpractice cases, the rule finds perhaps
its most natural application in cases where legal injury flows
from physical injury. The discovery rule, however, is not
limited in its application to situations involving bodily injury,
and may also apply in cases involving alleged employment
discrimination, where the actual injury at issue is not physical
in the same way that bodily injury is physical. In this regard
we agree with the court in Cada that the discovery rule is
implicit in Delaware State College v. Ricks, 449 U.S. 250 (1980).
Cada, 920 F.2d at 450. In Ricks, a Title VII case, the Supreme
Court held that the statute of limitations began to run "at the
time the [alleged discriminatory] tenure decision was made and
communicated to Ricks." Ricks, 449 U.S. at 258 (emphasis
supplied). See also Ohemeng v. Delaware State College, 643 F.
Supp. 1575, 1580 (D. Del. 1986) (Roth, J.) (applying discovery
rule in Title VII setting).
time after it occurred. The discovery rule functions in this
latter scenario to postpone the beginning of the statutory
limitations period from the date when the alleged unlawful
employment practice occurred, to the date when the plaintiff
actually discovered he or she had been injured. Cada, 920 F.2d
at 450. In either scenario, once the plaintiff's cause of action
has accrued, that is, once the plaintiff has discovered the
injury, the statutory limitations period begins to run and the
plaintiff is afforded the full limitations period, starting from
the point of claim accrual, in which to file his or her claim of
discrimination. Id. at 452 ("[I]t is entirely clear that the
discovery rule if applicable gives the plaintiff the entire
statute of limitations period in which to sue, counting from the
date of discovery. . . .").
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
occurred.'" Ohemeng v. Delaware State College, 643 F. Supp.
1575, 1580 (D.Del. 1986) (Roth, J.) (quoting McWilliams v.
Escambia County School Board, 658 F.2d 326, 330 (5th Cir. 1981)).
Thus, the "polestar" of the discovery rule is not the plaintiff's
actual knowledge of injury, but rather whether the knowledge was
known, or through the exercise of reasonable diligence, knowable
to the plaintiff. See Bohus v. Beloff, 950 F.2d 919, 925 (3d
Cir. 1991) (construing Pennsylvania law and applying the
discovery rule in connection with a medical malpractice cause of
action) (citations omitted). In short, the discovery rule
functions to delay the initial running of the statutory
limitations period, but only until the plaintiff has discovered
or, by exercising reasonable diligence, should have discovered
(1) that he or she has been injured, and (2) that this injury has
been caused by another party's conduct. Bohus, 950 F.2d at 924.
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
cause of the injury; that the injury is due to another's
negligent conduct; or that he [or she] has a cause of action.")
(citations omitted). Likewise, by indicating that the discovery
rule postpones the beginning of the limitations period from the
date a plaintiff was wronged until the date a plaintiff discovers
that he or she was injured, the Court of Appeals for the Seventh
Circuit in Cada has, at least by implication, suggested that
awareness of actual injury, as opposed to legal injury, is
sufficient to trigger the running of the statutory period. Cada,
920 F.2d at 450. See also Merrill v. Southern Methodist
University, 806 F.2d 600, 604-05 (5th Cir. 1986) (stating that
the limitations period in Title VII cases starts to run on the
date when the plaintiff knows or reasonably should know that the
discriminatory act has occurred, not on the date the victim first
perceived that a discriminatory motive caused the act).
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.
Id. at 832.
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
6
. Our discussion of equitable tolling in this case is germane
only to those cases in which the doctrine is considered in
connection with a defendant's deception regarding the plaintiff's
cause of action. The other two established situations to which
equitable tolling applies give rise to equitable considerations
wholly unrelated to our discussion of the doctrine here.
In Meyer v. Riegel Products Corporation, 720 F.2d 303
(3d Cir. 1983), a case involving the Age Discrimination in
Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., we observed
that although the time limitations prescribed by Congress must be
"treated seriously," cases may arise "``where the employer's own
acts or omissions have lulled the plaintiff into foregoing prompt
attempts to vindicate his [or her] rights.'" Meyer, 720 F.2d at
307 (quoting Bonham v. Dresser Industries, Inc., 569 F.2d 187,
193 (3d Cir. 1977)). In such cases, equitable tolling may be
appropriate. Id. See also Smith v. American President Lines,
Ltd., 571 F.2d 102, 109 n.12 (2d Cir. 1978) ("The primary
consideration underlying statutes of limitations is that of
fairness to the defendant . . . The most common and justifiable
of the exceptions to the running of statutes of limitations[,
therefore,] is based upon affirmative acts of the defendant which
have impeded suit."). We have held, in the context of employment
discrimination cases, that the equitable tolling doctrine may
excuse the plaintiff's non-compliance with the statutory
limitations provision at issue when it appears that (1) the
defendant actively misled the plaintiff respecting the reason for
the plaintiff's discharge, and (2) this deception caused the
plaintiff's non-compliance with the limitations provision. See
Meyer, 720 F.2d at 308-09.
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.
In Hart, a defendant employer discharged the plaintiff,
a female biochemist. At the time of her discharge, the plaintiff
(Hart) was given four reasons for her dismissal, all unrelated to
her gender. Hart, 598 F.2d at 830 n.2. Hart filed an untimely
charge of gender discrimination with the EEOC. She later brought
suit under Title VII. The district court granted the employer's
motion for summary judgment, finding that (1) Hart had untimely
filed her EEOC charge and (2) the facts of the case did not call
for equitable tolling. Id. at 831.
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
reason for his dismissal. The employer informed Meyer that he
had been dismissed due to a "reorganization." Meyer, 720 F.2d at
305. After filing a charge of age discrimination with the United
States Department of Labor, Meyer brought suit against the
employer. Meyer, 720 F.2d at 306. The district court granted
the employer's motion for summary judgment, finding that Meyer
had failed to file a timely charge with the Department of Labor.
In arriving at this conclusion, the court explicitly rejected
Meyer's plea to invoke the doctrine of equitable tolling, noting
that his own statements revealed that he suspected from the day
of his discharge that he had been dismissed because of his age.
Id. at 306.
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).
Against the back-drop of this principle, we are lead to
conclude that where a defendant actively misleads the plaintiff
regarding the reason for the plaintiff's dismissal, the statute
of limitations will not begin to run, that is, will be tolled,
until the facts which would support the plaintiff's cause of
action are apparent, or should be apparent to a person with a
reasonably prudent regard for his or her rights. This is the
rule set forth by the Court of Appeals for the Fifth Circuit in
Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th
Cir. 1975). It has been recognized and applied by a number of
our sister circuits, see Vaught v. R.R. Donnelley & Sons Co., 745
F.2d 407, 410-12 (7th Cir. 1984) (applying Reeb and referring to
it the "seminal case" in the area of equitable tolling);
Wilkerson v. Siegfried Ins. Agency, Inc., 683 F.2d 344, 345-46
(10th Cir. 1982) (applying Reeb); Miranda v. B & B Cash Grocery
Store, Inc., 975 F.2d 1518, 1531-32 (11th Cir. 1992) (same), and
we adopt it here.
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
discriminatory discharge. Id. The court of appeals vacated the
district court's judgment dismissing the case. Id. at 931.
Finding that the 90-day period did not begin to run until Reeb
had learned of the EOA's replacement hire, the court of appeals
stated:
[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.
Id. at 930.
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.
The court in Cada distinguished "equitable estoppel"
and "equitable tolling."7 According to Cada, equitable estoppel
arises where the defendant has attempted to mislead the plaintiff
and thus prevent the plaintiff from suing on time. Id. at 452.
Thus, according to Cada, equitable estoppel requires a showing of
inequitable conduct on the part of the defendant. In contrast,
for equitable tolling, all the plaintiff need show is that he or
she could not, by the exercise of reasonable diligence, have
discovered essential information bearing on his or her claim.
Id. With this contrast in mind, the court went on to discuss the
remedy each doctrine affords:
[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
7
. The doctrine which the Seventh Circuit describes as
"equitable estoppel" appears to be the same, in all important
respects, as our "equitable tolling" insofar as our "equitable
tolling" excuses a late filing where such tardiness results from
active deception on the part of the defendant. We note that what
the Seventh Circuit in Cada calls "equitable tolling" is not what
we are describing when we use and apply the same term in the
context of employer deception.
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. . . .
Id. at 452-53.
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
on a plaintiff's cognizance, or imputed cognizance, of actual
injury. See Merrill, 806 F.2d at 604-05. Equitable tolling, on
the other hand, keys on a plaintiff's cognizance, or imputed
cognizance, of the facts supporting the plaintiff's cause of
action.8 Underlying this difference between the discovery rule
and equitable tolling is the more fundamental difference in
purpose between the two rules. The purpose of the discovery rule
is to determine the accrual date of a claim, for ultimate
purposes of determining, as a legal matter, when the statute of
limitations begins to run. Equitable tolling, at least as the
doctrine might apply in Oshiver's case, presumes claim accrual.
Equitable tolling steps in to toll, or stop, the running of the
statute of limitations in light of established equitable
considerations.
III.
We now apply the discovery rule and the doctrine of
equitable tolling to Oshiver's claims.
8
. Of course, cognizance of the facts supporting the
plaintiff's cause of action presumes cognizance of actual injury.
A.
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
9
. An argument can be made that since Oshiver had been hired as
a temporary employee, she did not know, and could not have been
expected to know, that she had been injured until she learned,
later on, that the law firm had hired another hourly temporary
employee a few weeks after her discharge. However, this argument
overlooks the fact that the discovery rule hinges upon actual, as
opposed to legal, injury. That Oshiver may not have known on
April 10, 1990, that her discharge constituted an actionable
legal wrong does not matter for discovery rule purposes.
We next address whether Oshiver's discriminatory
failure to hire claim is saved by the operation of the discovery
rule. In so doing, it bears repeating that the discovery rule
requires the plaintiff to exercise reasonable diligence in the
ascertainment of injury. We cannot say that Oshiver exercised
the reasonable diligence required by the discovery rule in
connection with her discovery of the firm's hiring of the male
associate. This hiring occurred sometime in May of 1991. Had
Oshiver exercised reasonable diligence -- had she, for example,
telephoned the law firm periodically to monitor the status of her
own outstanding associate application, or checked with the firm
in May of 1991 after learning that it had hired an hourly
attorney shortly after discharging her -- she would almost
certainly have discovered the associate hiring much earlier.
Thus, the discovery rule affords Oshiver no relief in connection
with the timing of the filing of her failure to hire claim.
B.
We now apply the doctrine of equitable tolling to
Oshiver's discriminatory discharge claim.10
10
. We do not apply this doctrine to Oshiver's failure to hire
claim, however, because nowhere in the complaint does Oshiver
allege that the law firm misled her, actively or otherwise, with
respect to this claim. Accordingly, there is no basis for the
application of the equitable tolling doctrine. Oshiver's
complaint in this regard merely alleges that the firm told her
that she would be considered for an associate position if one
became available, but did not contact her upon the opening of an
associate position. Thus, at most, Oshiver alleges that the firm
concealed from her the fact that an associate opening arose. To
be activated, equitable tolling requires active misleading on the
part of the defendant. The type of concealment Oshiver alleges
Oshiver's complaint alleges that at the time of her
dismissal, the firm offered the explanation that it had no work
for her to perform. Oshiver also alleges in her complaint that
she learned in May of 1991 that she had been replaced by a male,
and that "apparently there was work to do at the firm." (Joint
Appendix at 20a). The district court concluded that the
allegations in Oshiver's complaint were insufficient to invoke
the doctrine of equitable tolling. However, this issue was
raised in the context of a motion to dismiss pursuant to Fed. R.
Civ. P. 12(b)(6). The district court was to accept all
allegations of fact as true and draw all reasonable inferences in
Oshiver's favor. Middle Bucks Area Vocational Technical School,
972 F.2d at 1367. Therefore, all that was required of Oshiver at
this stage was that she plead the applicability of the doctrine.
A fair reading of Oshiver's complaint is that she claims that the
firm told her there was no work when "apparently there was
. . .," a fact which she learned for the first time much later.
Thus, Oshiver's allegations essentially charge that (1) the firm
actively misled her regarding the reason for her discharge, and
(2) the critical fact that would have alerted a reasonable person
to the alleged unlawful discrimination only became known to
Oshiver on May 21, 1991. We find that these allegations, taken
as true and giving Oshiver the benefit of all reasonable
(..continued)
is, in our view, qualitatively different from taking affirmative
steps to mislead.
inferences, are sufficient to activate the doctrine of equitable
tolling. See Reeb, 516 F.2d at 930.
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
running of the statutory period until the plaintiff knows, or
should reasonably be expected to know, the concealed facts
supporting the cause of action flows directly, and naturally,
from this fundamental equitable principle. Unless the plaintiff
is then given the full statutory period in which to file his or
her charge of discrimination, starting from the moment he or she
acquires or constructively acquires such knowledge, the
defendant's inequitable conduct will have served to shorten the
limitations period, and thus benefit the defendant. This is
precisely the result the equitable tolling doctrine was created
to avoid.
IV.
For the reasons stated above, we will affirm the
district court's dismissal of Oshiver's discriminatory failure to
hire claim pursuant to Federal Rules of Civil Procedure 12(b)(1)
and (6). We will reverse the district court's dismissal of
Oshiver's discriminatory discharge claim and remand for
proceedings consistent with this opinion.
_______________________