Oshiver v. Levin, Fishbein, Sedran & Berman

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Precedential or Non-Precedential: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

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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.

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