Rossiter v. Potter, CIV.A. 02-12192-WGY.
| Decision Date | 16 May 2003 |
| Docket Number | No. CIV.A. 02-12192-WGY.,CIV.A. 02-12192-WGY. |
| Citation | 257 F.Supp.2d 440 |
| Parties | Paul F. ROSSITER, Plaintiff, v. John E. POTTER, Postmaster General, and United States Postal Service, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Richard C. Biller, Sean T. Goguen, Goguen, McLaughlin, Richards & Mahaney, LLP, South Natick, MA, for Paul L. Rossiter, Plaintiff.
Christopher R. Donato, United States Attorney's Office, Boston, MA, for John E. Potter, Postmaster General, United States Postal Service, Defendants.
The plaintiff, Paul Rossiter ("Rossiter"), brings claims under the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. § 621 et. seq., and Mass. Gen. Laws Ch. 151B, against defendants Postmaster General John Potter ("Potter") and the United States Postal Service (the "Postal Service") (collectively, the "Defendants"). Rossiter, who was 46 years old when the Postal Service declined to offer him employment, alleges that he was discriminated against on account of his age.
The Defendants have moved to dismiss Rossiter's claims under the ADEA on the grounds that they are time-barred and have moved to dismiss his Chapter 151B claims on the grounds that the ADEA provides the exclusive remedy for federal employees alleging age discrimination. Although it is clear that Rossiter's Chapter 151B claims are indeed preempted, the determination of the applicable statute of limitations for Rossiter's federal claims under the ADEA raises a more complex issue.
The following facts may be gleaned from Rossiter's complaint and are presumed true for the purposes of the instant motion.
In April 2000, Rossiter took and passed the Postal Service's written exam. Compl. [Docket No. 1] ¶ 6. On or about September 22, 2000, he passed a required drug test. Id. U 7. In December 2000, Rossiter interviewed with Steve Froio ("Froio"), an Operations Manager with the Postal Service, for a letter carrier position. Id. ¶¶ 8-9. Rossiter believed that the interview went well and expected to be hired. Id. 119.
On or about January 4, 2001, the Postal Service sent Rossiter—who was forty-six years old at that point—a letter informing him that he had not been hired. Id. 111! 10, 16. On or about January 29, 2001, Rossiter spoke with Froio, who allegedly told Rossiter that he had not been hired because he seemed nervous during the interview and did not make eye contact. Id. 1112. According to Rossiter, Froio went on to state, "[i]f you were 20 years younger, being nervous would have been acceptable, but not with 20 years of service." When Rossiter stated that he thought he was being denied the job because of his age, Froio allegedly responded, "[i]t didn't help you any." Id. Rossiter asked Froio if he could be reconsidered for a letter carrier position, but Froio responded that no jobs were available. Shortly thereafter, Rossiter received a mailing announcing that the Postal Service was still seeking to hire letter carriers. Id. 113.
On or about February 14, 2001, Rossiter requested an appointment with an Equal Employment Opportunity Commission ("Commission") counselor regarding his non-selection for employment at the Postal Service. Def.s' Mem. [Docket No. 4] at 2.1 On or about February 24, 2001, Rossiter completed and submitted an informal complaint by completing an "Information for Precomplaint Counseling" form. Id. On or about April 11, 2001, Rossiter agreed to attempt mediation, which took place on May 21, 2001. Id. No resolution was reached at the mediation and on July 26, 2001, Rossiter filed his notice of intent to sue with the Commission. Id. at 2-3.
On November 8, 2002—one year and 105 days after filing his Notice of Intent to Sue—Rossiter filed the instant complaint in this Court. In his complaint, Rossiter brought (1) a claim against Potter under the ADEA [Count One]; (2) a claim against Potter under Chapter 151B [Count Two]; (3) a claim against the Postal Service under the ADEA [Count Three]; and (4) a claim against the Postal Service under Chapter 151B [Count Four].
The Defendants subsequently filed the instant motion to dismiss [Docket No. 3], alleging that the statute of limitations had run on Rossiter's claim under the ADEA and that Rossiter's Chapter 151B claims were preempted. The Court held a hearing on the Defendants' motion on May 5, 2003.
At the hearing, Rossiter did not contest that his Chapter 151B claims were preempted. Indeed, the case law is clear that the ADEA provides the exclusive remedy for federal employees alleging age discrimination, preempting all other claims whether based on federal, state, or common law. Kersey v. Widnall, No. CIV. A.97-10464-GAO, 1998 WL 151232, at *4 (D.Mass. March 12, 1998) (O'Toole, J.) (unpublished opinion), aff'd, 201 F.3d 427, 1998 WL 1247118 (1st Cir.1998) (unpublished opinion). The question of whether Rossiter's claims under the Act are time-barred, however, was very much in dispute at the hearing, and the Court took the issue under advisement.
In ruling on a motion to dismiss, the Court construes the complaint in the light most favorable to the plaintiff; dismissal is appropriate only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The Court must take the well-pleaded facts as they appear in the complaint, extending the plaintiff every reasonable inference in his favor. Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir.1990).
Whether Rossiter's ADEA claims are time-barred is a complex question that requires some introduction. As a starting point, a federal employee may take one of two routes when choosing to pursue an ADEA claim against the government.
First, the federal employee may seek resolution through the Commission administrative process, filing an action in federal court only if unsatisfied with the results obtained from the Commission. 29 U.S.C. § 633a(b) (2000). The ADEA does not set forth a statute of limitations with respect to how much time a plaintiff has, subsequent to an adverse agency decision, to file suit in federal court. As such, courts have "borrowed" statutes of limitations from other analogous statutes—frequently, Title VII. Indeed, in 1990, the First Circuit ruled in Lavery v. Marsh that the appropriate statute of limitations in ADEA cases where the federal employee first pursues agency relief is "the same as that for claims pursuant to Title VII of the Civil Rights Act—thirty days [now ninety days, pursuant to an amendment in Title VII] following receipt of the final administrative order." 918 F.2d 1022, 1024 (1st Cir.1990). The Lavery court reasoned that:
"[t]he ADEA and Title VII share a common purpose, the elimination of discrimination in the workplace...." In fact, the ADEA amendment prohibiting federal-sector age discrimination was patterned after 42 U.S.C. § 2000e-16(a), (b), the amendments to Title VII extending that statute's protection to federal employees. The federal employment age discrimination amendment was thus intended to be "`substantially similar to'" the federal workplace counterpart in Title VII.
Id. at 1025 (internal citations omitted).
In the alternative, a federal employee may—as did Rossiter—bypass the Commission and bring suit directly in federal court. 29 U.S.C. § 633a(c) (2000).2 Here, too, the ADEA does not set forth explicitly a statute of limitations. The ADEA simply provides that the employee must file notice of an intent to sue with the Commission within 180 days after the alleged unlawful practice occurs and then must wait at least thirty days after filing the notice to file suit. 29 U.S.C. § 633a(d) (2000). The ADEA does not impose a limitation on how long after the expiration of the 30 day period the employee has to sue. Despite this statutory language, some courts originally interpreted the ADEA to mean that the employee pursuing the second route, that is, suing directly in federal court, had to file suit within thirty days of giving notice to the Commission, just as required by Title VII.3 The Supreme Court corrected this erroneous interpretation in Stevens v. Department of Treasury, noting that the lower courts had erred in holding "that the federal litigation had to be commenced within 30 days of the notice, instead of after 30 days from the notice," and the Court stated that:
The applicable regulations are positive as to the absence of such a "within 30 days" requirement under the ADEA, in marked contrast with the situation concerning the assertion of a Title VII claim.... The statute does not expressly impose any additional limitations period for a complaint of age discrimination. We therefore assume, as we have before, that Congress intended to impose an appropriate period borrowed from a state statute or from an analogous federal one. In this case, we need not decide which limitations period is applicable to a civil action under 29 U.S.C. § 633a(c). Stevens filed his suit on May 3, 1988, only one year and six days after the allegedly discriminatory event of April 27, 1987. That, as respondents acknowledge, Brief for Respondents 30, "is well within whatever statute of limitations might apply to the action."
500 U.S. 1, 7-8, 111 S.Ct. 1562, 114 L.Ed.2d 1 (1991) (internal citations omitted).
Stevens thus left unanswered how much time an employee pursuing the second route (direct suit in federal court) has to file suit after he has notified the Commission of his intent to do so: thirty days is the minimum, but what is the maximum? The only court to address this specific question—namely, the statute of limitations for federal employees who go straight to federal court—has been the Eleventh Circuit. In Edwards v. Shalala, the Eleventh Circuit held that, once the...
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Rossiter v. Potter
...either the 90-day limitations period contained in Title VII or the hybrid period fashioned by the lower court. See Rossiter v. Potter, 257 F.Supp.2d 440, 445 (D.Mass.2003).1 Accordingly, we reverse the order dismissing the plaintiff's complaint as time-barred and remand for further proceedi......