Lavery v. Marsh

• Decision Date: 14 September 1990
• Docket Number: No. 90-1412,90-1412
• Citation: 918 F.2d 1022
• Parties: 54 Fair Empl.Prac.Cas. 1402, 55 Empl. Prac. Dec. P 40,399 Stanley LAVERY, Plaintiff, Appellant, v. John O. MARSH, Jr., Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1022

918 F.2d 1022

54 Fair Empl.Prac.Cas. 1402,

55 Empl. Prac. Dec. P 40,399

Stanley LAVERY, Plaintiff, Appellant, v. John O. MARSH, Jr., Defendant, Appellee.

No. 90-1412.

United States Court of Appeals, First Circuit.

Heard Sept. 14, 1990.

Decided Nov. 20, 1990.

Ernest C. Hadley, Wareham, Mass., for plaintiff, appellant.

Paul G. Levenson, Asst. U.S. Atty., Somerville, Mass., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief, for defendant, appellee.

Before TORRUELLA, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

BOWNES, Senior Circuit Judge.

We are asked to decide an issue of first impression in this circuit, namely, what period of limitations following a final agency decision applies to an action alleging age discrimination brought by a federal employee pursuant to the Age Discrimination in Employment Act ("ADEA," "the Act"), 29 U.S.C. Sec. 633a. There is also an issue of equitable tolling. Plaintiff-appellant Stanley J. Lavery appeals from the dismissal by the district court of his age discrimination claim against his employer, defendant-appellee, the Secretary of the Army ("the Secretary"). See Lavery v. Marsh, 727 F.Supp. 728 (D.Mass.1989).

I. FACTS ¹ AND PROCEDURAL HISTORY

In August 1984, Lavery was a 59-year-old Contract Cost and Price Analyst, employment grade GS-12, with the Army Materials Technology Laboratory ("MTL"). In response to MTL's solicitation for applications for the position of Procurement Officer, GS-13, Lavery applied for the job. In November 1984, a 38-year-old woman, whom Lavery claims was less qualified, was selected for the position.

In December 1984, Lavery filed an administrative complaint with the Army claiming age discrimination in his nonselection for the promotion. Although an administrative judge of the Equal Employment Opportunity Commission ("EEOC") found discrimination, that decision was ultimately rejected by the agency. The EEOC Office of Review and Appeals affirmed the agency decision of no discrimination and on March 3, 1989, denied Lavery's request to reopen and reconsider, issuing a final administrative decision rejecting his claim.

Within the EEOC's March 3 decision there appeared, in pertinent part, the following notice to Lavery:

STATEMENT OF APPELLANT'S RIGHTS--ON REQUEST TO REOPEN RIGHT

TO FILE A CIVIL ACTION

You are hereby notified that there is no further right of appeal from a decision of the Commission on a Request to Reopen. You have the right to file a civil action in an appropriate United States District Court WITHIN THIRTY (30) DAYS of the date that you receive this decision. As to any claim based on the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a), you MAY have up to six years after the right of action first accrued in which to file a civil action. See Lehman v. Nakshian, 453 U.S. 156 [101 S.Ct. 2698, 69 L.Ed.2d 548] (1981); 29 U.S.C. 633a(f); and 28 U.S.C. 2401(a).

* * * * * *

APPOINTMENT OF COUNSEL

* * * * * *

Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action MUST BE FILED WITHIN THIRTY (30) DAYS from the date that you receive the Commission's decision.

(Emphasis original). After receiving this notice, Lavery's attorney withdrew. In May 1989, Lavery retained new counsel.

On July 7, 1989, over four months after the final agency decision and four and one-half years after the alleged discriminatory failure to promote, Lavery filed this complaint in district court, pursuant to 29 U.S.C. Sec. 633a, alleging age discrimination. The Secretary moved to dismiss, arguing that because the suit was filed over thirty days after the final EEOC decision, it was time-barred. The Secretary argued that, despite the lack of a specific statute of limitations, the age discrimination claim of a federal employee was subject to the same thirty-day period of limitations as applies to federal employee claims of discrimination based on race, color, religion, sex or national origin. See 42 U.S.C. Sec. 2000e-16(c) ("Title VII"). Lavery countered that, as there is no express period of limitations in section 633a, the catchall six-year statute of limitations for actions against the United States applies, and his suit was timely. See 28 U.S.C. Sec. 2401(a). ² In the alternative, Lavery argued he was entitled to equitable tolling if the court determined the limitations period to be thirty days. The district court did determine that a section 633a action is subject to a thirty-day limitations period but allowed Lavery the further opportunity to show cause why he was entitled to equitable relief from the period of limitations. Lavery's subsequent motion for equitable relief was denied, and the defendant's motion to dismiss was granted.

II. THE STATUTE OF LIMITATIONS

The ADEA, as enacted in 1967, prohibited discrimination in private employment on the basis of age, 29 U.S.C. Secs. 621 et seq., incorporating the enforcement scheme of the Fair Labor Standards Act ("FLSA"). In 1974, Congress extended the Act's coverage to state and local government employees by amending the definition of "employer"; it "added an entirely new section, Sec. 15 [29 U.S.C. Sec. 633a], to address the problems of age discrimination in federal employment. Here Congress deliberately prescribed a distinct statutory scheme applicable only to the federal sector, and one based not on the FLSA but ... on Title VII" of the Civil Rights Act of 1964. Lehman v. Nakshian, 453 U.S. 156, 166-167, 101 S.Ct. 2698, 2704-2705, 69 L.Ed.2d 548 (1981).

Although the ADEA contains a statute of limitations for claims against private employers, 29 U.S.C. Sec. 626(e)(1) (two years or, for willful violations, three years), there is no express limitations provision in section 633a. This silence results in the precise question we must decide, i.e., within what length of time after a final agency decision must a complaint alleging age discrimination in federal employment be filed in district court. ³

We are compelled to note at the outset that there are virtually as many different answers to the question presented here as there are courts that have dealt with it. Many courts have decided on a limitations period of thirty days, e.g., Strazdas v. Baker, 689 F.Supp. 310 (S.D.N.Y.1988); Caraway v. Postmaster General, 678 F.Supp. 125 (D.Md.1988). One court has determined the limitations period to be six years. Lubniewski v. Lehman, 891 F.2d 216 (9th Cir.1989). One has decided that the limitations period is either two or three years but is in no event thirty days or six years. Coleman v. Nolan, 693 F.Supp. 1544 (S.D.N.Y.1988). Another has applied the private-sector two-year limitations period, Wiersema v. TVA, 648 F.Supp. 66 (E.D.Tenn.1986), notwithstanding the Act's command that the private sector provisions of the statute, with one exception not pertinent here, do not apply to federal employees. 29 U.S.C. Sec. 633a(f). And still another court has rejected a thirty-day limitations period without adopting an alternative, admitting that it was "unable to determine precisely what Congress had in mind." Bornholdt v. Brady, 869 F.2d 57, 60 (2d Cir.1989). Although we too cannot say with certainty what Congress' intent was, we agree with the Secretary and the district court that it is most reasonable to impute to Congress an intent that ADEA federal employee actions be subject to the same limitations period as other federal employee discrimination claims. We have, therefore, determined that the applicable period of limitations for federal ADEA actions is the same as that for claims pursuant to Title VII of the Civil Rights Act--thirty days following receipt of the final administrative order.

The Supreme Court has charted the course for interpreting legislative intent where, as here, Congress created a cause of action but was silent with regard to the period of limitations that should apply.

As is often the case in federal civil law, there is no federal statute of limitations expressly applicable to this suit. In such situations we do not ordinarily assume that Congress intended that there be no time limit on actions at all; rather, our task is to "borrow" the most suitable statute or other rule of timeliness from some other source.

DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 158, 103 S.Ct. 2281, 2287, 76 L.Ed.2d 476 (1983). Borrowing a limitations period from another federal source is particularly appropriate, the Court explained, when the borrowed statute was "actually designed to accommodate a balance of interests very similar to that at stake" in the case at hand and was "in fact, an analogy" to the statute containing no limitations provision. Id. at 169, 103 S.Ct. at 2293. See also Agency Holding Corp. v. Malley-Duff & Assocs., 483 U.S. 143, 151, 107 S.Ct. 2759, 2764, 97 L.Ed.2d 121 (1987) (borrowing Clayton Act statute of limitations for RICO civil enforcement action because, inter alia, both "statutes aim to compensate the same type of injury.").

A natural source for borrowing a statute of limitations for age discrimination cases is Title VII, as "the ADEA and Title VII share a common purpose, the elimination of 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). In fact, the ADEA amendment prohibiting federal-sector age discrimination was patterned after 42 U.S.C. Sec. 2000e-16(a), (b), the amendments to Title VII extending that statute's protection to federal employees. Nakshian, 453 U.S. at 163-164, 101 S.Ct. at 2702-2703. The federal employment age discrimination amendment was thus intended to be " 'substantially similar to' " the federal workplace counterpart in Title VII. Id. at 167 n. 15, 101 S.Ct. at 2705 n. 15 (quoting remarks of Senator Bentsen, 118 Cong.Rec. 24397 (1972)). In light of the expressed congressional intent to prohibit age discrimination by federal employers...