Rawlett v. Runyon ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
THOMAS RAWLETT,
Plaintiff-Appellant,
v.
No. 94-1751
MARVIN RUNYON, Postmaster
General, United States Post Office,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Chief District Judge.
(CA-93-1279-A)
Submitted: November 19, 1996
Decided: December 23, 1996
Before MURNAGHAN, MICHAEL, and MOTZ, Circuit Judges.
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Affirmed as modified by unpublished per curiam opinion.
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COUNSEL
Thomas Rawlett, Appellant Pro Se. Dennis Edward Szybala, Assis-
tant United States Attorney, Alexandria, Virginia; Lori Joan Dym,
UNITED STATES POSTAL SERVICE, Washington, D.C., for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Thomas Rawlett, an employee of the United States Postal Service
in Northern Virginia, was informed on March 25, 1989, that he had
not been chosen for a promotion to lead mechanic. Rawlett was over
age forty at the time; the promotion was given to a man under forty.
Rawlett proceeded to challenge the decision through the Equal
Employment Opportunity Commission (EEOC), which ultimately
found no discrimination. Rawlett was informed on April 10, 1991,
that he had the right to file a civil action in district court, and that dif-
ferent district courts could apply different limitations period for filing
an action under the Age Discrimination in Employment Act (ADEA),
29 U.S.C.A. §§ 621-634 (West 1985 & Supp. 1996).
In September 1993 Rawlett made a request for reconsideration with
the EEOC, which the agency denied as untimely. Rawlett then filed
the complaint in this case on October 12, 1993. The district court
granted summary judgment, holding that the claim was untimely
filed. Rawlett appeals.
The ADEA contains no limitations provision for a federal
employee who pursues administrative remedies before going to court.
Therefore, an appropriate limitations period must be adopted from an
analogous federal or state provision. Stevens v. Department of
Treasury, 500 U.S. 1, 7-8 (1991). Most of the circuits that have
addressed the issue have elected to apply the limitations period of
Title VII, 42 U.S.C.A. § 2000e-16(c) (1972), amended by Act of Nov.
21, 1991, 42 U.S.C. § 2000e-16(c) (1994), requiring the litigant to file
a civil action within thirty days of receipt of notice of final agency
action.* Jones v. Runyon, 32 F.3d 1454, 1456 (10th Cir. 1994); Long
_________________________________________________________________
*Pursuant to the Civil Rights Act of 1991, that time period is now
ninety days. 42 U.S.C. § 2000e-16(c) (1994). But the Civil Rights Act of
1991 is not retroactive to conduct that occurred before the revision where
such application would extend the liability of a party. See Landgraf v.
USI Film Prods., 511 U.S. 244, 280 (1994).
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v. Frank, 22 F.3d 54, 56-59 (2d Cir. 1994), cert. denied, ___ U.S.
___, 63 U.S.L.W. 3563 (U.S. Jan. 23, 1995) (No. 94-6226); Lavery
v. Marsh, 918 F.2d 1022, 1024-27 (1st Cir. 1990); see Edwards v.
Shalala, 64 F.3d 601, 603-06 (11th Cir. 1995) (holding that Title VII
is most analogous to the ADEA, and provides the most appropriate
statute of limitations to borrow). The Ninth Circuit has ruled that the
six-year general statute of limitations for nontort civil claims against
the government, 28 U.S.C. § 2401(a) (1994), applied to ADEA claims
against federal employers. Lubniewski v. Lehman , 891 F.2d 216,
220-21 (9th Cir. 1989).
The district court rejected both these options and chose to apply the
limitations period from the Fair Labor Standards Act (FLSA), 29
U.S.C. § 255 (1994), which has also been used in the private sector
ADEA. This approach has been rejected by other courts as being in
contravention of 29 U.S.C. § 633a(f) (1994), which prohibits borrow-
ing provisions from the private sector ADEA. See Edwards, 64 F.3d
at 606; Long, 22 F.3d at 57. We have decided to join the majority of
circuits that have addressed the issue and adopt the thirty-day period
of Title VII. Applying this limitation period, we reach the same result
as the district court--Rawlett's ADEA action was untimely filed.
Accordingly, we affirm the district court's judgment below, on
slightly different reasoning. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED AS MODIFIED
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