James A. Long v. Anthony M. Frank, Postmaster General, 22 F.3d 54, 2d Cir. (1994)

22 F.
3d 54
64 Fair Empl.Prac.Cas. (BNA) 782,
64 Empl. Prac. Dec. P 42,984, 62 USLW 2666
James A. LONG, Plaintiff-Appellant,

v.
Anthony M. FRANK, Postmaster General, Defendant-Appellee.
No. 285, Docket 93-6101.
United States Court of Appeals,

Second Circuit.
Argued Dec. 14, 1993.
Decided April 15, 1994.
James A. Long, pro se.

Warren D. Ausubel, Asst. U.S. Atty., Brooklyn, NY (Zachary W. Carter,
U.S. Atty. E.D.N.Y., Robert L. Begleiter, Deborah B. Zwany, Asst. U.S.
Attys., Brooklyn, NY, of counsel), for defendant-appellee.
Before: MINER and WALKER, Circuit Judges, and MUNSON, District
Judge.*
WALKER, Circuit Judge:
This appeal requires us to consider whether the statute of limitations applicable

to civil actions by federal employees under Title VII of the Civil Rights Act of
1964, 42 U.S.C. Sec. 2000e-16(c), should apply to similar actions brought
under the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C.
Sec. 633a. Plaintiff-appellant James A. Long appeals pro se from a judgment of
the United States District Court for the Eastern District of New York (I. Leo
Glasser, Judge ), granting summary judgment against him on his ADEA claim
against the United States Postal Service (the "Postal Service"). The district
court held that the thirty day limitations period applicable to Title VII claims
applied to Long's ADEA claims and that summary judgment was proper
because Long's complaint was not filed within this period. Long v. Frank, 813
F.Supp. 969 (E.D.N.Y.1993).
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.
Long then commenced litigation before the MSPB to determine who, as

between Long and his attorney, should have received the attorney's fee award,
and whether Long was entitled to missed overtime back pay for the period
during his thirty day suspension. The MSPB dismissed for lack of jurisdiction
Long's claim that he was entitled personally to receive the fee award and
dismissed his claim for overtime back pay as untimely filed. Long then
appealed to the United States Claims Court which transferred the case to the
Court of Appeals for the Federal Circuit. The Federal Circuit affirmed the
MSPB's holding that it did not have jurisdiction over the fee dispute, and also
the MSPB's decision to dismiss Long's overtime back pay claim as untimely.
See Long v. United States Postal Serv., 930 F.2d 38 (Fed.Cir.1991).
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
Subsequent to our decision in Bornholdt, however, the Supreme Court indicated

that borrowing is appropriate in ADEA suits against the federal government,
although the Court did not decide specifically which limitations period should
apply. See Stevens, 500 U.S. at 7, 111 S.Ct. at 1567. We must now address the
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
As we noted in Bornholdt, the two most likely candidates for borrowing

besides Title VII would be inappropriate for federal ADEA suits. 869 F.2d at
64-65. The two year limitations period applicable to private ADEA actions
(three years for willful violations) is not fit for borrowing because the
legislative history makes clear that Sec. 633a "is independent of any other
section of [the ADEA]," H.R.Conf.Rep. No. 950, 95th Cong., 2d Sess. 11
(1978), reprinted in 1978 U.S.C.C.A.N. 504, 528, 532, and its provisions are
"self-contained and unaffected by other sections, including those governing
procedures applicable in actions against private employers," Lehman, 453 U.S.
at 168, 101 S.Ct. at 2705. The six year catch-all limitations period, 28 U.S.C.
Sec. 2401(a), is similarly unacceptable since it applies only in cases where no
other congressional intent is discernible. Because the provisions of Title VII are
analogous to the ADEA in structure and purpose, the provisions of that statute
provide stronger guidance in this case than the catch-all provision. See Wilson
v. Garcia, 471 U.S. 261, 278-80, 105 S.Ct. 1938, 1948-49, 85 L.Ed.2d 254
(1985) (refusing to apply catch-all provision when another statute of limitations
governing conduct more closely analogous to the conduct at issue was

available); Lavery, 918 F.2d at 1026-27 (rejecting catch-all provision for
ADEA claims by federal employees and applying Title VII period). Given the
compelling analogy between the ADEA and Title VII, we think it prudent to
adhere to accepted methods of statutory construction in borrowing a statute of
limitations, rather than canvassing the volumes of the United States Code in
search of a less appropriate alternative.
16
Furthermore, while these factors provide an independent justification for

borrowing the Title VII limitations period, it is significant that the EEOC--the
agency responsible for enforcing the ADEA--has since our decision in
Bornholdt amended its regulations to apply the same limitations period to
federal claims under the ADEA as applies under Title VII. See 29 C.F.R. Sec.
1614.408(c). In support of its interpretation of the ADEA, the EEOC noted the
anomaly that would result if federal employees complaining of discrimination
based on race, color, religion, sex, or national origin under Title VII had to
bring suit within thirty days of a final agency decision, while those complaining
of age discrimination had six years. See 57 Fed.Reg. 12,634, 12,640 (1992).
Insofar as the EEOC's interpretation reflects an expression of policy as to how
long a federal employee should have to sue, we must defer to the EEOC's
conclusion. See Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 111 S.Ct.
2524, 2535, 115 L.Ed.2d 604 (1991). Even if we were not so constrained, in a
case like this one where the EEOC's determination comports with our own
statutory interpretation, we find its analysis persuasive. Accordingly, we hold
that when federal employees bring a civil action after pursuing administrative
remedies under the ADEA, the action must be brought within the time period
allowed for similar suits under Title VII.
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.
II. Equitable Tolling
18
We next address whether Long is entitled to equitable tolling of the statute of

limitations. Under the doctrine of equitable tolling, a complainant may be
allowed to file his or her claim outside the applicable limitations period if,
because of some action on the defendant's part, the complainant was unaware
that the cause of action existed. See Dillman v. Combustion Eng'g, Inc., 784
F.2d 57, 60 (2d Cir.1986). The doctrine of equitable tolling "was developed in
the context of actions based on fraud," but "has been applied in cases alleging
causes of action other than fraud where the facts show that the defendant
engaged in conduct, often itself fraudulent, that concealed from the plaintiff the
existence of the cause of action." Cerbone v. International Ladies' Garment
Workers' Union, 768 F.2d 45, 48 (2d Cir.1985).
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

James A. Long v. Anthony M. Frank, Postmaster General, 22 F.3d 54, 2d Cir. (1994)

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James A. Long v. Anthony M. Frank, Postmaster General, 22 F.3d 54, 2d Cir. (1994)

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22 F.

James A. LONG, Plaintiff-Appellant,

United States Court of Appeals,

James A. Long, pro se.

This appeal requires us to consider whether the statute of limitations applicable

Long then commenced litigation before the MSPB to determine who, as

Subsequent to our decision in Bornholdt, however, the Supreme Court indicated

As we noted in Bornholdt, the two most likely candidates for borrowing

governing conduct more closely analogous to the conduct at issue was

Furthermore, while these factors provide an independent justification for

II. Equitable Tolling

We next address whether Long is entitled to equitable tolling of the statute of

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