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James A. Long v. Anthony M. Frank, Postmaster General, 22 F.3d 54, 2d Cir. (1994)
James A. Long v. Anthony M. Frank, Postmaster General, 22 F.3d 54, 2d Cir. (1994)
3d 54
64 Fair Empl.Prac.Cas. (BNA) 782,
64 Empl. Prac. Dec. P 42,984, 62 USLW 2666
This litigation has a lengthy history dating back to Long's 1982 discharge from
his job with the Postal Service, followed by his decision to bring suit alleging
that the Postal Service discharged him in violation of his civil rights. This
history has been recounted elsewhere, see Long v. Frank, 808 F.Supp. 961
(E.D.N.Y.1992) ("Long I "), on reh'g, 813 F.Supp. 969 (E.D.N.Y.1993) ("Long
II "), and we will focus only on those facts relevant to this appeal. We hold that
the statute of limitations applicable to Title VII civil actions by federal
employees applies to analogous suits under ADEA and accordingly affirm the
judgment of the district court.
BACKGROUND
3
In July 1982, the Postal Service issued Long a Notice of Proposed Removal
(the "Notice") that stated that Long was being discharged because he allegedly
assaulted a fellow employee earlier that month. The Postal Service advised
Long of his right to respond to the Notice and his right to file a grievance
pursuant to a collective bargaining agreement between the Postal Service and
Long's union. After considering Long's response to the allegations against him,
the Postal Service issued a Letter of Decision informing him that he would be
dismissed, but that he had a right to appeal the decision to the Merit Systems
Protection Board (the "MSPB").
In August 1982, Long filed an appeal with the MSPB, a grievance pursuant to
the collective bargaining agreement, and an Equal Employment Opportunity
complaint against the Postal Service alleging that his discharge was based on
race, color, age, and reprisal discrimination. On April 19, 1983, the MSPB
ordered the Postal Service to reinstate Long. Although it found that Long's
dismissal was not the result of discrimination, the MSPB determined that based
on the equities of Long's case, a thirty day suspension, instead of discharge,
was the appropriate sanction. The MSPB also denied Long's application for
attorney's fees as untimely. Long then appealed the MSPB's decision to the
Equal Employment Opportunity Commission (the "EEOC") to challenge the
finding that his discharge was not based on illegal discrimination.
More than two years later, on September 20, 1985, the EEOC determined that
Long was a victim of race/color and reprisal discrimination, but not age
discrimination. The EEOC ordered the Postal Service to pay Long back pay for
the thirty days he had been suspended pursuant to the MSPB order plus
attorney's fees. On December 19, 1986, upon the Postal Service's request to
reopen, the EEOC modified its order slightly with respect to the disciplinary
measures to be taken against the "alleged discriminating official," but did not
alter Long's relief.
On June 12, 1987, in light of the EEOC's decision, the MSPB reconsidered its
earlier order denying Long's untimely application for attorney's fees, and
ordered the Postal Service to pay Long attorney's fees totaling $6,525. By
September 1987, the Postal Service had complied in full with both the EEOC's
and the MSPB's orders.
In November 1990, Long filed the present ADEA action seeking the same
relief he sought before the MSPB: a judgment that the attorney's fee award
should have been paid directly to him, and that he is entitled to overtime back
pay. In response to the Postal Service's motion for summary judgment the
district court initially ruled that Long's attorney's fee claim was barred by res
judicata, but that his overtime back pay claim was not precluded by res judicata
because the Federal Circuit's decision did not address the merits of that claim.
Long I, 808 F.Supp. at 966-67. The district court also held sua sponte that the
overtime back pay award was not barred by the statute of limitations. Id. at 967.
On reargument, the court reconsidered its statute of limitations holding and
ruled that Long's ADEA claims were barred in their entirety by the limitations
period applicable to Title VII actions by federal employees, 42 U.S.C. Sec.
2000e-16(c), which the court found appropriate to borrow for claims under
ADEA. Long II, 813 F.Supp. at 972.
DISCUSSION
I. Statute of Limitations
9
A federal employee claiming age discrimination has the option of bringing suit
in federal court in the first instance, or of pursuing administrative remedies
before the EEOC and then suing in federal court if not satisfied with the
administrative results. See 29 U.S.C. Sec. 633a(b) and (c). With respect to civil
actions brought directly to federal court, the federal employee must give the
EEOC notice of intent to sue within 180 days of the alleged discriminatory
conduct, and then must wait 30 days before filing the suit. Id. Sec. 633a(d). The
ADEA provisions applicable to federal employees who pursue administrative
remedies before initiating a private suit do not, however, contain an express
statute of limitations to govern how long after final agency action the employee
has to file a civil action. We must therefore "borrow" an appropriate limitations
period from an analogous state or federal provision. Stevens v. Department of
Treasury, 500 U.S. 1, 7, 111 S.Ct. 1562, 1567, 114 L.Ed.2d 1 (1991).
10
Federal courts are divided on the issue of the appropriate statute of limitations
to apply to ADEA civil actions brought by federal employees after
administrative remedies are complete. Compare Lavery v. Marsh, 918 F.2d
1022, 1025-27 (1st Cir.1990); Strazdas v. Baker, 689 F.Supp. 310, 312
(S.D.N.Y.1988); Healy v. United States Postal Serv., 677 F.Supp. 1284, 128990 (E.D.N.Y.1987) (all borrowing thirty day limitations period applicable to
Title VII actions) with Lubniewski v. Lehman, 891 F.2d 216, 221 (9th
Cir.1989) (applying six year catch-all period of 28 U.S.C. Sec. 2401(a)) and
with Coleman v. Nolan, 693 F.Supp. 1544, 1548 (S.D.N.Y.1988) (applying two
and three year period applicable to ADEA actions brought by private
employees). This court previously has discussed the issue, and intimated in
dicta that it would be inappropriate to borrow the thirty day limitations period
from Title VII. See Bornholdt v. Brady, 869 F.2d 57, 66 (2d Cir.1989).
Developments since our decision in Bornholdt, however, convince us that the
Bornholdt dicta should not become law, and that the analogous Title VII
limitations period, 42 U.S.C. Sec. 2000e-16(c), is the only one appropriate to
borrow for ADEA claims.
11
A major factor motivating our discussion in Bornholdt was the perception that
while "borrowing" ordinarily is the appropriate mode of statutory construction
with respect to unexpressed statutes of limitations, it might not be the proper
method in suits against the federal government. Bornholdt, 869 F.2d at 64. We
reasoned that with respect to federal causes of action against private entities,
borrowing was necessary because there is no general statute of limitations to
cover such actions. With respect to suits against the federal government, on the
other hand, the six year catch-all provision exists, 28 U.S.C. Sec. 2401(a),
undermining what we perceived to be a fundamental rationale behind the
practice of borrowing a statute of limitations. Id.
12
question left open by the Supreme Court in Stevens and this court in Bornholdt,
and decide which of the available statutes is most analogous to the ADEA, and
therefore most appropriate for borrowing.
13
It is beyond dispute that the provisions of the ADEA are analogous to, and
indeed were "patterned after," Title VII. See Lehman v. Nakshian, 453 U.S.
156, 163-64, 101 S.Ct. 2698, 2703, 69 L.Ed.2d 548 (1981); Bornholdt, 869
F.2d at 65. Both statutes share the common purpose of eliminating
discrimination in the workplace, Oscar Mayer & Co. v. Evans, 441 U.S. 750,
756, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979), and several circuit courts,
including this court, have interpreted the ADEA by comparison to analogous
provisions of Title VII. See Rebar v. Marsh, 959 F.2d 216, 218 n. 5 (11th
Cir.1992) (collecting cases); Bornholdt, 869 F.2d at 65 (same).
14
The only factor that counsels against fixing the ADEA statute of limitations by
reference to Title VII, and the one that influenced our discussion in Bornholdt,
is that Congress eliminated an identical thirty day provision from an earlier
draft of Sec. 633a. See Bornholdt, 869 F.2d at 65-66. The legislative history is
silent on Congress's reasons for deleting the thirty day period from Sec. 633a.
In the absence of an explanation for the omission, we cannot ascribe to it the
deliberate purpose of precluding interpretation by reference to the most closely
analogous statute, for, in doing so we are just as likely to defeat Congress's
intent as to effectuate it. See Rastelli v. Warden, 782 F.2d 17, 24 n. 3 (2d
Cir.1986); see also Del-Costello v. International Bhd. of Teamsters, 462 U.S.
151, 169 n. 21, 103 S.Ct. 2281, 2293 n. 21, 76 L.Ed.2d 476 (1983).
15
17
Applying that limitations period to this case, we must find Long's ADEA claim
time-barred. Although the Civil Rights Act of 1991 extended the Title VII
limitations period from thirty to ninety days, the thirty day period applied when
Long filed this suit in November 1990. See Long II, 813 F.Supp. at 972 n. 1.
While we have held that amendments contained in the Civil Rights Act do not
apply retroactively, see Butts v. City of N.Y. Dep't of Housing Preservation &
Dev., 990 F.2d 1397, 1411 (2d Cir.1993), that issue is irrelevant to the decision
of this appeal. Since the last action taken by the EEOC on Long's age
discrimination claim occurred on December 19, 1986, nearly four years before
Long's complaint was filed, the present action was untimely under either
limitations period whether it be thirty or ninety days.
18
19
As a threshold matter, we note that equitable tolling applies in cases where the
federal government is a party defendant unless Congress expresses its intent to
the contrary. Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96, 111
S.Ct. 453, 457, 112 L.Ed.2d 435 (1990). Because suits against the government
involve a waiver of sovereign immunity, however, "it is evident that no more
favorable tolling doctrine may be employed against the Government than is
employed in suits between private litigants." Id. at 96, 111 S.Ct. at 458; see also
United States v. RePass, 688 F.2d 154, 158 (2d Cir.1982).
20
The equitable tolling issue arises in this case because ambiguity in the EEOC's
decision denying Long's age discrimination claim may have led him to believe
he had six years in which to file a civil action. The relevant portion of the notice
read:
21any of your claims were based on the Age Discrimination In Employment Act of
If
1967 (29 U.S.C. Sec. 633a), AS TO THOSE CLAIMS ONLY, you MAY have up to
six years after the right of action first accrued in which to file a civil action.
22
While the EEOC notice is not "a model of clarity," Lavery, 918 F.2d at 1028,
equitable tolling is not warranted on the facts of this case. The EEOC notice
informs claimants that they "MAY" have up to six years to file an ADEA civil
action. The uncertainty reflected in the notice stems from the inconsistency in
the case law between the circuits, and within each circuit. As the First Circuit
noted in Lavery construing a similar notice, a claimant in the Ninth Circuit
might have up to six years to file a claim, and the EEOC's uncertainty is
therefore justified. Id. (citing Lubniewski, 891 F.2d at 221). The ambiguity of
the EEOC notice does not, however, amount to affirmative misconduct on the
government's part aimed at causing Long to forgo his legal rights. See Cerbone,
768 F.2d at 49; Smith v. American President Lines, Ltd., 571 F.2d 102, 109 (2d
Cir.1978). Moreover, Long has not demonstrated that he relied on the EEOC
notice in deciding not to pursue his ADEA cause of action. See Lavery, 918
F.2d at 1028. To the contrary, throughout this litigation Long has pursued
every remedy available to him promptly and, although he is now proceeding
pro se, he was represented by counsel when the EEOC rendered its decision.
Long II, 813 F.Supp. at 973. We therefore see no basis for granting equitable
relief.
CONCLUSION
23
We hold that the district court correctly applied the analogous limitations
period of Title VII to Long's ADEA claim, and that the court properly declined
to grant equitable relief in this case. Accordingly, the judgment of the district
court is affirmed.
Hon. Howard G. Munson, Senior District Judge, United States District Court
for the Northern District of New York, sitting by designation