Edwards v. Shalala

• Decision Date: 11 March 1994
• Docket Number: No. 1:90-CV-2241-RCF.,1:90-CV-2241-RCF.
• Citation: 846 F. Supp. 997
• Parties: Richard A. EDWARDS v. Donna SHALALA, Secretary, Department of Health and Human Services.
• Court: U.S. District Court — Northern District of Georgia

846 F. Supp. 997

Richard A. EDWARDS v. Donna SHALALA,¹ Secretary, Department of Health and Human Services.

No. 1:90-CV-2241-RCF.

United States District Court, N.D. Georgia, Atlanta Division.

March 11, 1994.

Richard R. Thomas, Venema Towery Thompson & Thomas, Atlanta, GA, for plaintiff.

James Randolph Schulz, Office of U.S. Atty., N.D. Ga., Atlanta, GA, for defendant.

ORDER

RICHARD C. FREEMAN, Senior District Judge.

This action is before the court on defendant's motion for partial summary judgment # 18-1.² This motion is opposed.

Background

Plaintiff has been employed as an accountant since 1979 by the federal government with the Health Care Financing Administration HCFA, a division of the agency under defendant's supervision, the Department of Health and Human Services HHS. Complaint, ¶ 5. In late 1985, HHS issued a Vacancy Announcement for two accountant positions within HCFA. Both positions were compensated at a level one grade higher than plaintiffs current grade. Id., at ¶ 8. Plaintiff, then fifty years old, applied for both positions, but was denied promotion to either position 1986 events. Id., at ¶¶ 11, 12. HHS filled the positions with persons at least ten years younger than plaintiff. Id., at ¶ 12. A nearly identical set of events occurred in 1990 1990 events. Id., at ¶¶ 14-17. With respect to the 1986 events, on July 15, 1986, plaintiff filed a notice of his intent to sue with the Equal Employment Opportunity Commission EEOC. Defendant's Statement of Material Facts, ¶ 2; Plaintiffs Statement of Material Facts, ¶ 2. After the 1990 events, plaintiff initiated the instant action alleging age discrimination for both the 1986 events and the 1990 events pursuant to the portion of the Age Discrimination in Employment Act ADEA or the Act pertaining to actions against the federal government, 29 U.S.C. § 633a. Defendant's Statement of Material Facts, ¶ 3; Plaintiff's Statement of Material Facts, ¶ 3. Defendant seeks partial summary judgment as to the 1986 events only, claiming that plaintiff's claims based upon the 1986 events are time-barred because plaintiff's suit was filed after the statute of limitations had run. Defendant also seeks judgment as to plaintiff's prayers for liquidated damages, prejudgment interest, and attorney's fees. Plaintiff contests defendant's arguments regarding the applicable statute of limitations, but does not respond to defendant's argument and citation to authority concerning the liquidated damages, etc., claims.

Discussion

A. Summary Judgment Standard

Under Fed.R.Civ.P. 56 the court should grant a motion for summary judgment where "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." The movant carries his burden by showing the court that there is "an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). As the Eleventh Circuit has explained, "only when that burden has been met does the burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). The nonmovant is then required "to go beyond the pleadings" and present competent evidence in the form of affidavits, depositions, admissions and the like, designating "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 334, 106 S.Ct. at 2553. Generally, "the mere existence of a scintilla of evidence" supporting the nonmovant's case is insufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). The court, resolving all reasonable doubts in favor of the nonmovant, must determine "whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Id.

As previously noted, supra n. 2, the parties agree that the facts underlying defendant's motion for partial summary judgment are undisputed. That being the case, the court need only determine the applicable law and apply that law to these undisputed facts.

B. Applicable Law

Any person desirous of pursuing an age discrimination claim against the federal government may take one of two routes of prosecution. First, he or she may seek resolution through the EEOC administrative process and file an action in federal court only if unsatisfied with the results obtained through the EEOC. See 29 U.S.C. § 633a(b). Alternatively, he or she may bypass the EEOC procedures, and directly institute suit in federal court. See 29 U.S.C. § 633a(c). See also Stevens v. Department of the Treasury, 500 U.S. 1, 111 S.Ct. 1562, 1566, 114 L.Ed.2d 1 (1991) (discussing options available to age discrimination plaintiffs). Plaintiff has chosen the latter option to prosecute his claim.

When a plaintiff bypasses the EEOC, he or she becomes subject to certain time limits and procedures for filing his or her civil action. The Act provides:

When the individual has not filed a complaint concerning age discrimination with the EEOC, no civil action may be commenced by an individual under this section until the individual has given the EEOC not less than thirty days' notice of an intent to file such action. Such notice shall be filed within one hundred and eighty days after the alleged unlawful practice occurred.

29 U.S.C. § 633a(d) (emphasis added). It is this provision of the Act upon which defendant's statute of limitations argument is based.

Any meaningful discussion of § 633a(d) must begin with Stevens, supra. In that case, the Supreme Court stated that the two aforementioned time limits—30 days from notice to the EEOC of an intent to sue and 180 days prior to notice to the EEOC— operate as follows: If a plaintiff is discriminated against on Day 1, he or she has until Day 180 to notify the EEOC that he or she intends to sue for age discrimination. The thirty day period commences with the filing of the notice of an intent to sue. Thus, for example, if discrimination occurs on Day 1, and notification is given to the EEOC on Day 175, the plaintiff cannot institute suit until at least Day 205. See Stevens, 500 U.S. at 6-7, 111 S.Ct. at 1566-67. Significantly, for present purposes, § 633a does not state how long after the 30-day waiting period has expired a plaintiff can wait to actually file suit. The unanimous Stevens Court, recognizing this lack of direction in the statute, stated: "The statute does not expressly impose an additional limitations period for a complaint of age discrimination. We therefore assume, as we have before, that Congress intended to impose an appropriate period either from a state statute or from an analogous federal one. Agency Holding Corp. v. Malley-Duff & Assoc., Inc., 483 U.S. 143, 146-48, 107 S.Ct. 2759, 2762-63, 97 L.Ed.2d 121 (1987)." Stevens, 500 U.S. at 7-8, 111 S.Ct. at 1567. However, the Court went on to point out that the statute's silence as to the limitations period was not problematic in Stevens, because Stevens filed his suit one year and six days after the alleged discrimination. "That ... `is well within whatever statute of limitations might apply to the action.'" Id. (quoting brief for the respondents).

Citing several cases, defendant vigorously argues that the time period that should be "borrowed" from analogous statutes is that used in Title VII (42 U.S.C. § 2000e et seq.) actions, which requires suits to be instituted within 30 days of the receipt of an adverse determination from the EEOC. See, e.g., Taylor v. Espy, 816 F.Supp. 1553, 1559 (N.D.Ga.1993) (Murphy, J.); Lavery v. Marsh, 918 F.2d 1022 (1st Cir.1990); Long v. Frank, 813 F.Supp. 969, 971-72 (E.D.N.Y. 1993). Plaintiff contends that use of Title VII's time limits is inappropriate, and distinguishes the cases supporting defendant's position by emphasizing that the plaintiffs in those cases did not elect to proceed directly to court, but, rather, followed the alternative course of seeking redress through the administrative process of the EEOC. Plaintiff argues that the general six-year statute of limitations applicable to suits against the United States should apply. See 28 U.S.C. 2401(a);³ Lubniewski v. Lehman, 891 F.2d 216, 220-221 (9th Cir.1989) (applying six-year statute of limitations to § 633a claim instead of borrowing thirty-day period from Title VII).⁴ See also Bornholdt v. Brady, 869 F.2d 57, 66 (2d Cir.1989) (holding that Congress did not intend to utilize Title VII's limitations period in ADEA actions, but stating it was unable to determine which statute of limitations applied).

The court finds that neither the "catch-all" six-year statute of limitations urged by plaintiff, nor the 30-day limitation urged by defendant,⁵ applies to this action. As to defendant's contention, plaintiff correctly emphasizes that all of the cases "borrowing" the Title VII 30-day limitation period involved plaintiffs who first utilized the services of the EEOC. Title VII plaintiffs, unlike ADEA plaintiffs, do not have the option of bypassing the EEOC in order to prosecute their claims. Therefore, an ADEA plaintiff who does involve the EEOC in his or her claim stands in a virtually identical position to a Title VII plaintiff. In such a circumstance, it makes sense to use the same statute of limitations. The instant plaintiff, however, does not occupy such a position.

Applying the thirty-day statute of limitations in cases in which an ADEA plaintiff proceeds directly to court would contradict not only the letter of the Act, but the purpose, as well. As the Stevens Court noted, suit cannot be instituted under § 633a(d) until after 30 days of notice to the EEOC if the plaintiffs intent to sue. This stands in direct contrast to defendant's proposed interpretation, which would require plaintiff to file suit before 30 days elapse.

Further, the Act itself provides a clue...