Oshiver v. Levin, Fishbein, Sedran & Berman, No. 93-1366

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBefore BECKER, ROTH and LEWIS; LEWIS
Parties66 Fair Empl.Prac.Cas. (BNA) 429, 63 USLW 2367 Sherry J. OSHIVER, Appellant, v. LEVIN, FISHBEIN, SEDRAN & BERMAN, Appellee.
Decision Date07 November 1994
Docket NumberNo. 93-1366

Page 1380

38 F.3d 1380
66 Fair Empl.Prac.Cas. (BNA) 429, 63 USLW 2367
Sherry J. OSHIVER, Appellant,
v.
LEVIN, FISHBEIN, SEDRAN & BERMAN, Appellee.
No. 93-1366.
United States Court of Appeals,
Third Circuit.
Argued Oct. 25, 1993.
Decided Nov. 7, 1994.

Page 1383

William L. McLaughlin, Jr. (argued), Paoli, PA, for appellant.

Christine C. Fritton, Patrick W. Kittredge (argued), Kittredge, Donley, Elson, Fullem & Embick, Philadelphia, PA, for appellee.

Before BECKER, ROTH and LEWIS, Circuit Judges.

OPINION OF THE COURT

LEWIS, Circuit Judge.

Appellant Sherry J. Oshiver brought suit against the Philadelphia law firm of Levin, Fishbein, Sedran & Berman, where she had been employed as an attorney, claiming violations of both Title VII and the Pennsylvania Human Relations Act ("PHRA"). This is an appeal from the district court's dismissal of Oshiver's complaint, upon the law firm's motion, on the ground that Oshiver's claims were time-barred. We will affirm the district court's dismissal of Oshiver's discriminatory failure to hire claim, and reverse the district court's dismissal of Oshiver's discriminatory discharge claim.

Page 1384

I.

Oshiver, who had applied for a position as an associate attorney at Levin, Fishbein, Sedran, & Berman (the "firm") in May, 1989, was instead hired as an hourly attorney, having been informed that there were no salaried positions available at that time. When she was hired, however, she was also advised by the firm that she would be considered for an associate position if and when an opening occurred.

On April 10, 1990, Oshiver was dismissed with the explanation that the firm did not have sufficient work to sustain her position as an hourly employee at that time, but that the firm would contact her if either additional hourly work or an associate position became available.

In January, 1991, having been unable to secure employment since her dismissal, Oshiver applied for unemployment compensation benefits. At a benefits hearing on May 21, 1991, Oshiver learned that shortly after her dismissal, a male attorney had been hired by the firm to take over her duties as an hourly employee. Nearly six months after acquiring this information, on November 8, 1991, Oshiver filed administrative complaints with the Pennsylvania Human Relations Commission ("PHRC") and the Equal Employment Opportunity Commission ("EEOC") alleging that her dismissal was the product of gender discrimination.

In January, 1992, Oshiver learned that the firm had hired a male attorney as an associate in May of 1991, without notifying her that an associate position had opened. The firm's failure to hire her as an associate, according to Oshiver, constituted an additional instance of gender discrimination. Thus, Oshiver amended her administrative complaints in early April, 1992, to include a claim of discriminatory failure to hire.

On September 28, 1992, the EEOC issued Oshiver a right-to-sue letter, and on December 21, 1992, she filed a complaint in the United States District Court for the Eastern District of Pennsylvania alleging discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e, et seq. ("Title VII") and the Pennsylvania Human Relations Act.

The district court granted the firm's motion to dismiss Oshiver's complaint, holding that her federal claims were time-barred because the statutory limitations period had begun to run on April 10, 1990, the day the firm dismissed Oshiver; on that day, the court concluded, Oshiver knew or had reason to know that an alleged discriminatory act had occurred. The district court refused to apply the doctrine of equitable tolling to excuse Oshiver's failure to file her EEOC charge timely, finding nothing in Oshiver's complaint to suggest that the law firm had misled her respecting her cause of action, 818 F.Supp. 104.

In reviewing the district court's dismissal of Oshiver's claims of discrimination, we are called upon to balance the relevant statutorily mandated deadlines against certain tolling doctrines that might apply to extend them.

II.

We have jurisdiction over this appeal under 28 U.S.C. Sec. 1291. Since this is an appeal from a district court's dismissal pursuant to Rule 12(b)(6), we exercise plenary review. Ditri v. Coldwell Banker Residential Affiliates, Inc., 954 F.2d 869, 871 (3d Cir.1992). 1 We accept all facts pleaded as true and draw all reasonable inferences in favor of the plaintiff, D.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364, 1367 (3d Cir.1992), focussing on the pleadings 2 to determine whether the plaintiff

Page 1385

has stated a claim upon which relief may be granted.

III.

As noted above, the timeliness of Oshiver's administrative complaints is the key issue before us. Oshiver claims that her charges under Title VII were timely brought because the statutory limitations period did not begin to run until May 21, 1991, when she first discovered that the firm had hired a male attorney to assume her former duties as an hourly employee. Therefore, Oshiver argues, her filing on November 8, 1991, was timely. The firm disagrees, as did the district court. In the firm's view, the statute of limitations began to run on the date of Oshiver's termination, April 10, 1990, thus rendering Oshiver's administrative complaints untimely.

Title VII, like the PHRA, allows a plaintiff to bring suit within 180 days after the alleged act of discrimination; however, if the plaintiff initially filed a complaint with a state or local agency with authority to adjudicate the claim, he or she is allotted 300 days from the date of the alleged discrimination within which to file a charge of employment discrimination with the EEOC. 42 U.S.C. Sec. 2000e-5(e). 3 Therefore, since Oshiver filed a complaint with the PHRC, she had 300 days after the alleged act of discrimination in which to bring a charge with the EEOC. See Davis v. Calgon Corp., 627 F.2d 674, 675 (3d Cir.1980) (per curiam) (300-day limitations period applied even though plaintiff's filing with state agency was untimely). 4

There are two doctrines which might apply in this case to extend the time period Oshiver had in which to file her charges of discrimination: the discovery rule and the equitable tolling doctrine. As the Seventh Circuit observed in Cada v. Baxter Healthcare Corp., 920 F.2d 446 (7th Cir.1990), these theories, and their application, invite confusion. We will first discuss each of these doctrines and then apply them in turn to determine whether Oshiver timely filed her discrimination claims.

A. The Discovery Rule

We begin with the discovery rule. 5 As a general rule, the statute of limitations begins to run when the plaintiff's cause of action accrues. Cada, 920 F.2d at 450. As the court in Cada noted, the accrual date is not the date on which the wrong that injures the plaintiff occurs, but the date on which the plaintiff discovers that he or she has been injured. Id. There will, of course, be times

Page 1386

when the aggrieved person learns of the alleged unlawful employment practice, for example, at the very moment the unlawful employment practice occurs; in such cases the statutory period begins to run upon the occurrence of the alleged unlawful employment practice. However, there will also be occasions when an aggrieved person does not discover the occurrence of the alleged unlawful employment practice until some time after it occurred. The discovery rule functions in this latter scenario to postpone the beginning of the statutory limitations period from the date when the alleged unlawful employment practice occurred, to the date when the plaintiff actually discovered he or she had been injured. Cada, 920 F.2d at 450. In either scenario, once the plaintiff's cause of action has accrued, that is, once the plaintiff has discovered the injury, the statutory limitations period begins to run and the plaintiff is afforded the full limitations period, starting from the point of claim accrual, in which to file his or her claim of discrimination. Id. at 452 ("[I]t is entirely clear that the discovery rule if applicable gives the plaintiff the entire statute of limitations period in which to sue, counting from the date of discovery....").

A claim accrues in a federal cause of action as soon as a potential claimant either is aware, or should be aware, of the existence of and source of an injury. See Keystone Insurance Co. v. Houghton, 863 F.2d 1125, 1127 (3d Cir.1988) (stating this general proposition in the context of determining the accrual date of a RICO cause of action). A different rule, we have noted, would require an insufficient degree of diligence on the part of the potential claimant. Keystone Insurance, 863 F.2d at 1127. With specific regard to Title VII claims, and in a similar vein, the United States District Court for the District of Delaware observed that the limitations period for Title VII claims begins to run, under federal law, " 'when the plaintiff knows or reasonably should know that the discriminatory act has occurred.' " Ohemeng v. Delaware State College, 643 F.Supp. 1575, 1580 (D.Del.1986) (Roth, J.) (quoting McWilliams v. Escambia County School Board, 658 F.2d 326, 330 (5th Cir.1981)). Thus, the "polestar" of the discovery rule is not the plaintiff's actual knowledge of injury, but rather whether the knowledge was known, or through the exercise of reasonable diligence, knowable to the plaintiff. See Bohus v. Beloff, 950 F.2d 919, 925 (3d Cir.1991) (construing Pennsylvania law and applying the discovery rule in connection with a medical malpractice cause of action) (citations omitted). In short, the discovery rule functions to delay the initial running of the statutory limitations period, but only until the plaintiff has discovered or, by exercising reasonable diligence, should have discovered (1) that he or she has been injured, and (2) that this injury has been caused by another party's conduct. Bohus, 950 F.2d at 924.

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  • West Penn Allegheny Health Sys. Inc. v. Upmc, No. 09-4468
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • November 29, 2010
    ...of limitations defense cannot be used in the context of a Rule 12(b)(6) motion to dismiss," Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 1 (3d Cir.1994), our cases recognize that a defendant may raise a limitations defense in a motion to dismiss, Robinson v. Johnson, 3......
  • Macauley v. Estate of Nicholas, Civil Action No. 10–7057.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 25, 2014
    ...(quoting Prudential Ins. Co. v. U.S. Gypsum Co., 359 F.3d 226, 233 (3d Cir.2004) ); see also Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1386 (3d Cir.1994) (“[A] claim accrues in a federal cause of action upon awareness of actual injury, not upon awareness that this injury co......
  • Keslosky v. Borough of Old Forge, No. 3:08–CV–1240.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • December 11, 2014
    ...claimant either is aware, or should be aware, of the existence of and source of an injury.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385–1386 (3d Cir.1994).Here, Plaintiff asserts that Old Forge is incorrect that Keslosky's claims pursuant to § 1983 are barred by the appl......
  • U.S. Equal Emp't Opportunity Comm'n v. Court of Common Pleas of Allegheny Cnty., Civil Action No. 2:14–899.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • October 15, 2014
    ...exhibits attached to the complaint, and other items appearing in the record of the case. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384, n. 2 (3d Cir.1994).IV. Jurisdiction and VenueThis action has been brought by an agency of the United States seeking to redress an alleged......
  • Request a trial to view additional results
2200 cases
  • West Penn Allegheny Health Sys. Inc. v. Upmc, No. 09-4468
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • November 29, 2010
    ...of limitations defense cannot be used in the context of a Rule 12(b)(6) motion to dismiss," Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 1 (3d Cir.1994), our cases recognize that a defendant may raise a limitations defense in a motion to dismiss, Robinson v. Johnson, 3......
  • Macauley v. Estate of Nicholas, Civil Action No. 10–7057.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 25, 2014
    ...(quoting Prudential Ins. Co. v. U.S. Gypsum Co., 359 F.3d 226, 233 (3d Cir.2004) ); see also Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1386 (3d Cir.1994) (“[A] claim accrues in a federal cause of action upon awareness of actual injury, not upon awareness that this injury co......
  • Keslosky v. Borough of Old Forge, No. 3:08–CV–1240.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • December 11, 2014
    ...claimant either is aware, or should be aware, of the existence of and source of an injury.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385–1386 (3d Cir.1994).Here, Plaintiff asserts that Old Forge is incorrect that Keslosky's claims pursuant to § 1983 are barred by the appl......
  • U.S. Equal Emp't Opportunity Comm'n v. Court of Common Pleas of Allegheny Cnty., Civil Action No. 2:14–899.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • October 15, 2014
    ...exhibits attached to the complaint, and other items appearing in the record of the case. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384, n. 2 (3d Cir.1994).IV. Jurisdiction and VenueThis action has been brought by an agency of the United States seeking to redress an alleged......
  • Request a trial to view additional results

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