East v. GRAPHIC ARTS INDUSTRY TRUST, 97-SP-613.

• Decision Date: 01 October 1998
• Docket Number: No. 97-SP-613.,97-SP-613.
• Citation: 718 A.2d 153
• Parties: Leslie EAST, Appellant, v. GRAPHIC ARTS INDUSTRY JOINT PENSION TRUST, Appellee.
• Court: D.C. Court of Appeals

718 A.2d 153

Leslie EAST, Appellant, v. GRAPHIC ARTS INDUSTRY JOINT PENSION TRUST, Appellee.

No. 97-SP-613.

District of Columbia Court of Appeals.

Argued October 7, 1997.

Decided October 1, 1998.

Charles F. Fuller, Bowie, MD, for appellant.

Susan L. Catler, Washington, DC, for appellee.

Before WAGNER, Chief Judge, KING, Associate Judge, Retired,^* and MACK, Senior Judge.

KING, Associate Judge.

Leslie East ("East") brought an action in the United States District Court for the District of Columbia against her former employer, Graphic Arts Industry Joint Pension Trust ("JPT"), under the District of Columbia Human Rights Act ("DCHRA" or "Act"), D.C.Code §§ 1-2501 to -2557 (1992 Repl. & 1998 Supp.), alleging that she was wrongfully dismissed from her job on account of her gender, pregnancy and family responsibility.¹ At issue here may be whether DCHRA's one-year statute of limitations is equitably tolled by an employer's failure to post notice of an employee's rights pursuant to DCHRA as required under the Act.²

The United States Court of Appeals for the District of Columbia Circuit, concluding that a question of District of Columbia law was determinative of the issue and that no controlling precedent existed in the decisions of this court, certified to this court under D.C.Code § 11-723(a)³ the following question:

Under District of Columbia law, and upon the facts described below, does an employer's failure to comply with the notice-posting requirements of the District of Columbia Human Rights Act ("DCHRA" or "Act"), D.C.Code Ann. § 1-2522 (1992), provide a justification for the equitable tolling of the Act's one-year statute of limitations for the filing of a private cause of action?

East v. Graphic Arts Indus. Joint Pension Trust, 323 U.S.App.D.C. 278, 107 F.3d 911 (1997). We conclude that, even assuming the applicability of equitable tolling principles where the employer fails to post notice in compliance with the Act, equitable tolling would not be available where, as here, plaintiff failed to file the court action within a reasonable time after she obtained—or by due diligence could have obtained—the information necessary to file her complaint.

I.

East began her employment with JPT in November 1992.⁴ Her responsibilities included secretarial and administrative work. Soon after her employment began, East learned that she was pregnant. She maintains that her pregnancy did not affect her ability to perform her job, and that her superiors commended her numerous times on the quality and promptness of her work. In March 1993, East's immediate supervisor Arthur Dinkin became aware that East was pregnant. On March 19, 1993, Dinkin told East that she was being terminated because "it wasn't working out." East received no further explanation for the termination, despite her repeated requests for an explanation.

East claims that she first learned of DCHRA at a social event on March 6, 1994, nearly a year after she was terminated. The next day, East telephoned the District of Columbia Department of Human Rights ("DHR") and learned of the procedure for filing an administrative complaint. She received the forms in the mail and completed and returned them in person on March 15, 1994, just days before the expiration of the one-year limitations period for filing an administrative complaint under DCHRA.⁵ East claimed that she was unaware at that time of her right to file a discrimination suit in court under DCHRA.⁶

In June 1994, East consulted with an attorney who informed her of her right to file a discrimination suit in a District of Columbia court. On March 3, 1995, nine months after learning from the attorney of her right to file suit and nearly two years after the alleged discriminatory event occurred, East brought this action in the United States District Court for the District of Columbia.⁷

According to East and two former JPT employees, there were no notices posted at JPT informing employees of their rights under DCHRA or any of the federal civil rights statutes.⁸

II.

DCHRA contains no express provisions for tolling the Act's one-year statute of limitations. See D.C.Code § 1-2544. Further, the District of Columbia is one of a minority of jurisdictions that has not adopted a general equitable "saving" statute to toll statutes of limitations in cases of reasonable mistake. See Bond v. Serano, 566 A.2d 47, 48, 52 (Farrell, J., concurring) (D.C.1989). Thus, we have refused to toll the statute of limitations in the case of plaintiff's good faith mistake of forum. Sayyad v. Fawzi, 674 A.2d 905 (D.C.1996) (filing of a timely complaint, which is later dismissed without prejudice because plaintiff failed to properly serve defendants, does not toll statute of limitations); Bond, supra, 566 A.2d 47 (filing of a diversity action against the District of Columbia in federal court does not toll statute of limitations even where subsequent unrelated case held that federal courts lacked pendent party jurisdiction over the District of Columbia resulting in dismissal of the diversity action). We have also said that

rejection of the application of equitable tolling on a case-by-case basis, where a trial judge would weigh the diligence of the defaulting party against any prejudice to the opponent of the suit, rests on the belief that where the legislature has provided no savings statute, courts would exceed their prescribed role by providing a remedy where the legislature has determined that none should lie.

Sayyad, supra, 674 A.2d at 906 (citing Bond, supra, 566 A.2d at 52, 53-55) (Farrell, J., concurring) (other citations omitted)). See also Kavanagh v. Noble, 332 U.S. 535, 539, 68 S.Ct. 235, 92 L.Ed. 150 (1947) ("Limitations periods are established to cut off rights, justifiable or not, that might otherwise be asserted and they must be strictly adhered to by the judiciary. Remedies for resulting inequities are to be provided by the legislature, not the courts.") (citation omitted).

We do recognize, however, at least two limited exceptions to our generally strict application of statutes of limitations: the lulling doctrine and the discovery rule.⁹Bond, supra, 566 A.2d at 50 (Farrell, J., concurring). Under the lulling doctrine, "a defendant cannot assert `the bar of the statute of limitations, if it appears the defendant has done anything that would tend to lull the plaintiff into inaction, and thereby permit the limitation prescribed by the statute to run....'" Id. (alteration in original) (quoting Hornblower v. George Washington University, 31 App.D.C. 64, 75 (1908)). This court has construed the lulling doctrine narrowly. Id. (citing Bailey v. Greenberg, 516 A.2d 934, 937 (D.C.1986)). A second exception, the discovery rule,

is designed to prevent the accrual of a cause of action before an individual can reasonably be expected to discover that he has a basis for legal redress, and the statute should not commence until a claimant knows, or through the exercise of due diligence, should know, that his injury resulted from someone's wrongdoing.

Bussineau v. President & Dirs. of Georgetown College, 518 A.2d 423, 430 (D.C.1986); see also Kidwell v. District of Columbia, 670 A.2d 349 (D.C.1996).

Neither the lulling doctrine nor the discovery rule applies to the present case. With respect to lulling, our case law requires some affirmative action on the defendant's part that goes beyond failure to post notice of the law.¹⁰ We have noted that "mere silence, failure to disclose, or ignorance of facts establishing a claim" generally do not rise to the level of affirmative misconduct. Young, supra note 10, 412 A.2d at 1192.

With respect to the discovery rule, our caselaw makes clear that the rule concerns situations where the fact of an injury is not readily apparent, and establishes the accrual date for limitations purposes as the time when a plaintiff discovered or should have discovered all of the essential elements of a possible cause of action. Farris v. Compton, 652 A.2d 49, 54 (D.C.1994).¹¹ Thus, "for a cause of action to accrue where the discovery rule is applicable, one must know or by the exercise of reasonable diligence should know (1) of the injury, (2) its cause in fact, and (3) some evidence of wrongdoing." Bussineau, supra, 518 A.2d at 435.

The discovery rule does not apply to circumstances, such as those presented here, where the plaintiff has failed to discover the relevant law even though the existence of an injury is apparent. See Kidwell, supra, 670 A.2d at 353 ("The filing deadline is tolled `until the facts that would support a charge of discrimination under Title VII were apparent or should have been apparent....'") (emphasis added) (citation omitted). Although East learned of her possible remedies only on March 6, 1994, the discovery rule does not apply in this case because the focus of the rule is on when she gained the general knowledge that her firing by her employer was wrongful, not on when she learned of precise legal remedies for the firing. Her general knowledge that her termination was improper was enough to require her to seek legal assistance, and failure to seek such advice does not toll the statute of limitations under the discovery rule. Kazanzas v. Walt Disney World Co., 704 F.2d 1527, 1530 (11th Cir.1983) (citations omitted).

III.

East contends that the doctrine of equitable tolling should apply in this case because of JPT's failure to post the required notice under DCHRA. She argues that the one-year limitation period did not begin to run until March 6, 1994, when she first learned of her possible right to recover under DCHRA. Thus, the complaint filed March 3, 1995, just under one year later, was timely. She relies on a line of cases in which federal courts have held that equitable tolling may be proper where an employer has failed to post required notice under the ADEA or Title VII. See, e.g., Kale v. Combined Ins. Co. of America, 861 F.2d 746 (1st Cir.1988); McClinton v....