Bornholdt v. Brady, 189

• Citation: 869 F.2d 57
• Decision Date: 16 February 1989
• Docket Number: No. 189,D,189
• Parties: 54 Fair Empl.Prac.Cas. 987, 49 Empl. Prac. Dec. P 38,770 Frank B. BORNHOLDT, Plaintiff-Appellant, v. Nicholas F. BRADY, Secretary of the United States Department of Treasury, and Lawrence B. Gibbs, Commissioner of the Internal Revenue Service of the United States of America, Defendants-Appellees. ocket 88-6057.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 57

869 F.2d 57

54 Fair Empl.Prac.Cas. 987,

49 Empl. Prac. Dec. P 38,770

Frank B. BORNHOLDT, Plaintiff-Appellant, v. Nicholas F. BRADY, Secretary of the United States Department

of Treasury, and Lawrence B. Gibbs, Commissioner

of the Internal Revenue Service of the

United States of America,

Defendants-Appellees.

No. 189, Docket 88-6057.

United States Court of Appeals, Second Circuit.

Argued Oct. 13, 1988.

Decided Feb. 16, 1989.

Steven G. Eckhaus, New York City (Kelly, Eckhaus & Mohen, New York City, on the brief), for plaintiff-appellant.

Ellen B. Silverman, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty. S.D.N.Y., Nancy Kilson, Asst. U.S. Atty., New York City, on the brief), for defendants-appellees.

Miller, Singer, Raives & Brandes, P.C. (Alfred Miller, Steven S. Honigman, Peter N. Greenwald, Adam E. Budish, New York City, Steven S. Zaleznick, Christopher G. Mackaronis, Cathy Ventrell-Monsees, Washington, D.C., of counsel), for amicus curiae American Ass'n of Retired Persons.

Before MESKILL, KEARSE, and MAHONEY, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff Frank B. Bornholdt, a former employee of the Internal Revenue Service ("IRS"), appeals from a final judgment of the United States District Court for the Southern District of New York, Louis L. Stanton, Judge, dismissing his complaint seeking declaratory, injunctive, and monetary relief against IRS and the Department of the Treasury (collectively the "Government") for (1) employment discrimination on the basis of age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 et seq. (1982 & Supp. IV 1986) ("ADEA" or the "Act"), and (2) termination of his employment as reprisal for presenting his age-discrimination claim to an administrative agency, in violation of the ADEA, Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1982) ("Title VII"), and the Civil Service Reform Act of 1978, 5 U.S.C. Sec. 2302(b) (1982). The district court summarily dismissed the complaint as time-barred because it was not filed within 30 days after Bornholdt received notice of final administrative action on his claims. On appeal, Bornholdt contends

principally (1) that his claims were not governed by a 30-day limitations period, (2) that even if a 30-day period is applicable, principles of equitable tolling or equitable estoppel should be applied to extend the period, and (3) that in any event, the present suit is timely because it relates back to an earlier lawsuit. For the reasons below, we affirm the judgment insofar as it dismissed the claim of reprisal but vacate and remand for further proceedings on the claim of age discrimination.

I. BACKGROUND

Bornholdt was employed by IRS as a revenue officer from 1966 until April 1983. On March 15, 1982, his 62nd birthday, he became eligible for retirement. He contends that in June 1981, IRS commenced discriminating against him because of his age and that it has retaliated against him for complaining of age discrimination. These contentions have been the subject of numerous administrative and judicial complaints.

A. The First Administrative Filings

In May 1982, Bornholdt filed a complaint with the IRS Equal Employment Opportunity Office ("IRSEEO"), charging that between June 1981 and April 1982, IRS had engaged in a series of acts designed to coerce him to retire. These included the issuance of a 60-day "notice of disciplinary action" stating that his job performance was inadequate. Bornholdt contended that the notice was disingenuous and was designed to mask IRS discrimination against him because of his age (the "age-discrimination claim").

In July and October of 1982 and in March and April of 1983, Bornholdt filed four additional claims with IRSEEO. Each claim alleged that IRS had taken an unlawful action against him in reprisal for his having filed the May 1982 age-discrimination complaint (the "reprisal claims"). The last such reprisal claim asserted that IRS had terminated Bornholdt's employment effective April 15, 1983. The claims filed by Bornholdt with IRSEEO in 1982 and 1983 were not quickly decided.

In May 1983, Bornholdt filed a petition with the Merit Systems Protection Board ("MSPB"), seeking to appeal IRS's April 1983 decision to terminate his employment on the ground that the termination was the result of age discrimination and unlawful reprisal. MSPB dismissed the petition for lack of jurisdiction, ruling that because Bornholdt had filed the same claim with IRSEEO, MSPB had no power to entertain the claim unless IRSEEO had rendered a decision or 120 days had elapsed without a decision. Since neither condition was fulfilled, MSPB dismissed Bornholdt's petition without prejudice.

B. The First Lawsuit and the First IRSEEO Decision

In June 1983, after giving the Equal Employment Opportunity Commission ("EEOC") notice of his intent to sue, Bornholdt commenced a federal civil suit in the Southern District of New York against the Department of the Treasury, IRS, and Bornholdt's supervisor at IRS, pursuing his claims of age discrimination and reprisals ("Bornholdt I "). In September 1983, the defendants moved to dismiss on the ground, inter alia, that no final administrative action had been taken on these claims. In July 1984, the court dismissed the action on the ground that IRSEEO had not rendered a final decision on Bornholdt's claims and that Bornholdt thus had not exhausted his administrative remedies. Bornholdt v. Department of Treasury, 83 Civ. 4596 (S.D.N.Y. July 20, 1984) (Gagliardi, J.).

Unbeknownst to Bornholdt and the court, however, prior to the dismissal of Bornholdt I, IRSEEO had in fact finally decided Bornholdt's age-discrimination claim. In November 1983, IRSEEO had issued a "proposed disposition" concluding that this claim was not supported by the evidence. This preliminary decision, which made no mention of the reprisal claims, apparently was received by Bornholdt during the pendency of Bornholdt I and was disclosed to the court. See id. at 6 n. 4. IRSEEO proceeded to adopt its proposed disposition as its final decision in March

                1984.  However, IRSEEO did not inform Bornholdt of this final decision for nearly two years.  Nor did defendants IRS and the Department of the Treasury, of which IRSEEO was part, disclose the existence of this March 1984 decision to the court.  As a result, Judge Gagliardi dismissed Bornholdt I in July 1984, believing that "the agency has yet to make a final determination on the matter."    Id
                

C. Additional Administrative and Judicial Filings

While Bornholdt I was pending, Bornholdt filed two additional appeals with MSPB. Both were dismissed without prejudice pending resolution of the court litigation. Following the district court's dismissal, Bornholdt renewed his MSPB appeal challenging his termination by IRS. A hearing was held, at the conclusion of which the MSPB hearing officer ruled orally that Bornholdt had "failed to prove that the agency had committed harmful error requiring reversal." Bornholdt v. Department of the Treasury, Case No. NY07528510115 (MSPB Initial Decision, Feb. 11, 1985). Upon the announcement of this ruling, however, Bornholdt moved to withdraw his appeal with prejudice. His motion was granted, and in February 1985, MSPB accordingly dismissed his appeal with prejudice. Id.

In May 1985, still unaware that IRSEEO had finally denied his age-discrimination claim in March 1984, Bornholdt returned to the district court, this time seeking a writ of mandamus to compel IRSEEO to decide his age-discrimination and reprisal claims ("Bornholdt II "). In response, the Department of the Treasury apparently informed the court that IRSEEO had in fact already decided the age-discrimination claim, as the court stated as follows:

Plaintiff has received a final agency decision with respect to his first complaint [age discrimination]. The Court notes that while plaintiff's subsequent complaints have been pending before the IRS for over two years, there is no statutory time limit within which the IRS must issue final decisions. Moreover, at least some of the delay can be attributed to the filing of parallel actions by plaintiff and his failure to respond to IRS communications.

The Court is mindful of the work load confronting administrative agencies and commissions. Nonetheless, the day of judgment must come; plaintiff is entitled to final decisions on all of his complaints, not just the one filed in May 1982.

Bornholdt v. United States Department of Treasury, 85 Civ. 3757 (S.D.N.Y. Jan. 8, 1986) (Weinfeld, J.). Judge Weinfeld dismissed the mandamus petition without prejudice to its renewal if no decision were forthcoming on the reprisal claims within a reasonable time.

By letter dated January 24, 1986, received by Bornholdt on February 10, 1986, IRSEEO finally notified Bornholdt that his age-discrimination claim had been denied by the agency on March 6, 1984. By letter dated April 3, 1986, IRSEEO notified Bornholdt that it was "cancel[ing]" his reprisal claims "for lack of jurisdiction" because MSPB had taken jurisdiction of those claims.

On or about April 16, 1986, Bornholdt sent the EEOC a notice of his intent to bring suit on the discrimination and reprisal claims. He was not heard from again for some 10 months.

D. The Present Lawsuit

The present suit was commenced in February 1987. The complaint asserted two claims: the first for age discrimination, in violation of the ADEA, and the second for termination of employment as unlawful retaliation, in violation of the ADEA, Title VII, and the Civil Service Reform Act.

The Government moved to dismiss asserting, inter alia, that the district court lacked subject matter jurisdiction because the complaint was time-barred. It contended that Bornholdt was required to commence suit within 30 days after he received notice of final agency action on his claims and that his complaint, filed 10-12 months after receipt of the IRSEEO final...