Rossiter v. Potter

• Decision Date: 27 January 2004
• Docket Number: No. 03-1860.,03-1860.
• Parties: Paul L. ROSSITER, Plaintiff, Appellant, v. John E. POTTER, as Postmaster General, and United States Postal Service, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 26

357 F.3d 26

Paul L. ROSSITER, Plaintiff, Appellant, v. John E. POTTER, as Postmaster General, and United States Postal Service, Defendants, Appellees.

No. 03-1860.

United States Court of Appeals, First Circuit.

Heard December 2, 2003.

Decided January 27, 2004.

Richard C. Biller, with whom Goguen, McLaughlin, Richards & Mahaney, LLP was on brief, for appellant.

Christopher R. Donato, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before SELYA, Circuit Judge, CYR, Senior Circuit Judge, and LYNCH, Circuit Judge.

SELYA, Circuit Judge.

This appeal involves a unique provision of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. A federal employee or a disappointed applicant for federal employment — we use the term "federal employee" throughout this opinion as a shorthand to cover both classes of persons — who wishes to pursue an ADEA claim has a right, not available to other ADEA claimants, to bypass the administrative process and go directly to a federal district court. See id. § 633a(c)-(d). The sole issue to be decided in this appeal concerns the limitations period that applies to such actions.

The only appellate court to have addressed this issue thus far chose to borrow the limitations period used for Title VII actions. See Edwards v. Shalala, 64 F.3d 601, 606 (11th Cir.1995) (citing 42 U.S.C. § 2000e-16(c)). Reluctant though we are to create a circuit split, we part company with the Edwards court and hold that when a federal employee opts to bypass the administrative process and pursue an ADEA claim directly in the district court, the applicable limitations period should be borrowed from the Fair Labor Standards Act (FLSA), 29 U.S.C. § 255(a). That period, which extends for at least two years from the date of the allegedly discriminatory act or practice, is longer than 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 proceedings.

I. Background

Since this appeal deals primarily with matters of timing, a thumbnail sketch of the facts will suffice. We draw that sketch mindful that an appellate court reviews a dismissal for failure to state a claim de novo, applying the same legal standards that bind the trial court. Banco Santander v. López-Stubbe (In re Colonial Mortgage Bankers Corp.), 324 F.3d 12, 15 (1st Cir.2003). Consequently, we assume the truth of all well-pleaded facts contained in the complaint and indulge all reasonable inferences therefrom to the plaintiff's behoof. Id.

In or around 2000, plaintiff-appellant Paul Rossiter sought employment with the United States Postal Service (USPS). After passing the USPS's preliminary screens (including a written examination and a drug test), Rossiter was interviewed by Steve Froio, a USPS hierarch. Although Rossiter had 20 years of experience in the service industry, the USPS refrained from contacting any of his references. This did not bode well for Rossiter's prospects, and in early January he received a letter stating that he would not be hired.

Rossiter pursued the matter. On January 29, 2001, Froio told him that he had been rejected because he seemed nervous during the interview. Froio added that "[i]f [Rossiter] were 20 years younger, being nervous would have been acceptable." When Rossiter suggested that he was being denied employment on account of his age, Froio replied: "It didn't help you any." Rossiter requested that his application be reconsidered, but Froio told him that reconsideration was impracticable as no more positions were available. Less than ten days later, however, Rossiter received correspondence announcing that the USPS was still seeking to hire people in the job category for which he had unsuccessfully applied.

At age 46, Rossiter was a member of the class protected by the ADEA. See 29 U.S.C. § 633a(a). Convinced that he had been denied employment by reason of age discrimination, he contacted the Equal Employment Opportunity Commission (EEOC) in mid-February. Following an initial meeting, Rossiter submitted an informal complaint. He later agreed to participate in mediation, which took place on May 21, 2001. Nothing was resolved.

On July 26, 2001, Rossiter filed a notice of intent to sue with the EEOC. From that point forward, the matter lay fallow until November 28, 2002. Rossiter then filed a civil action in the United States District Court for the District of Massachusetts against the Postmaster General and the USPS. In it, he alleged violations of the ADEA and its state counterpart, Mass. Gen. Laws ch. 151B, § 4(1). The defendants (collectively, the government) moved to dismiss the action, arguing (i) that the state-law claim was preempted by the ADEA, and (ii) that the ADEA claim was time-barred.

Rossiter did not contest the preemption argument, and the district court dismissed the state-law claim. Rossiter's ADEA claim proved to be a knottier problem. The district court took this aspect of the case under advisement and ultimately ruled, in a written rescript, that the claim was time-barred. Rossiter, 257 F.Supp.2d at 445. This appeal ensued.

II. Discussion

The path that we must travel has been well-marked. When Congress creates a cause of action but is silent as to the limitations period that should apply to the right created — as is the case in 29 U.S.C. § 633a — the judicial task is to borrow the most appropriate rule of timeliness from some other source. DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 158, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). After careful review of the evolution of the ADEA and its various enforcement schemes, we conclude that the FLSA provides the most analogous rule of timeliness for ADEA actions brought by federal employees who opt to bypass the administrative process.

A.

A Guide to the Statutory Scheme

Every journey is best understood if it begins with a roadmap. Congress passed the ADEA with a view toward ending workplace discrimination based on age. As originally enacted in 1967, the statute reached only private employers. See Pub.L. No. 90-202, § 11(b), 81 Stat. 602 (1967); see also Lehman v. Nakshian, 453 U.S. 156, 166, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981). Seven years later, Congress elongated the ADEA's reach to include governmental employers (federal, state, and local). See Pub.L. No. 93-259, § 28, 88 Stat. 55 (1974); see also Nakshian, 453 U.S. at 166, 101 S.Ct. 2698. To accomplish this augmentation, Congress broadened the ADEA's stock definition of "employer" to include state and local governments, thereby subjecting such employers to the enforcement mechanisms contained in the general statutory scheme. See Pub.L. No. 93-259, § 28(a)(2), 88 Stat. 55 (1974); see also Nakshian, 453 U.S. at 166, 101 S.Ct. 2698. Federal employers, however, were treated differently: they were added in an entirely new and distinct statutory section — one that contained its own enforcement mechanisms. See Fair Labor Standards Amendments of 1974, Pub.L. No. 93-259, § 28(b), 88 Stat. 74, codified at 29 U.S.C. § 633a; see also Nakshian, 453 U.S. at 166, 101 S.Ct. 2698. This dichotomy persists.

The general provisions of the ADEA (applicable to private employers and to state and local governments) originally embodied an enforcement scheme that resembled the FLSA's. See Lavery v. Marsh, 918 F.2d 1022, 1024 (1st Cir.1990). This included incorporation of the FLSA's statute of limitations. 29 U.S.C. § 626(e) (amended 1991) (incorporating by reference 29 U.S.C. § 255). The FLSA model set a limitations period of two years after the date of injury for general violations and three years for willful violations. See id. § 255(a).

In 1991, Congress removed the FLSA's incorporated statute of limitations from this portion of the ADEA and inserted a limitations scheme akin to that governing Title VII actions. See Civil Rights Act of 1991, Pub.L. No. 102-166, § 115, 105 Stat. 1071, 1079, codified as amended at 29 U.S.C. § 626(e). Under this reconstructed framework, there is no external requirement that a federal civil action predicated on an ADEA violation be filed within a specified time following the date of the discriminatory act or practice; rather, the applicable timing requirements relate to, and derive from, the administrative process. An employee must file an administrative complaint within 180 days of the alleged discrimination in order to preserve his or her claim. 29 U.S.C. § 626(d)(1). This filing vivifies the administrative process, and the date of injury has no further bearing on the question of timeliness. The applicable limitations period begins to run at the end of the administrative process: from that point, the employee has 90 days within which to bring suit. Id. § 626(e).

The legislative scheme for ADEA claims brought by federal employees is materially different. Congress provided dual means of enforcement for federal workers and left the choice between them to the claimant. On the one hand, a federal employee may invoke the EEOC's administrative process and thereafter file suit if he or she is dissatisfied with the administrative outcome. See id. § 633a(b)-(c); see also Stevens v. Dep't of Treasury, 500 U.S. 1, 5, 111 S.Ct. 1562, 114 L.Ed.2d 1 (1991). On the other hand, a federal employee may bypass the administrative process altogether and file a civil action directly in the federal district court. See 29 U.S.C. § 633a(c)-(d); see also Stevens, 500 U.S. at 6, 111 S.Ct. 1562. In that event, the only preconditions are (i) that "no civil action may be commenced by any individual under this section until the individual has given the [EEOC] not less than thirty days' notice of an intent to file such action," and (ii) that "[s]uch notice shall be filed within one...