Opinion
8:01CV592
August 20, 2002
MEMORANDUM AND ORDER
This matter is before the court on filing no. 8, the "Defendant Booz, Allen Hamilton Inc.'s Consolidated Motion to Dismiss" filed by the defendant, Booz, Allen Hamilton Inc., a Delaware corporation with its principal place of business in Virginia. The plaintiff, Lisa Lynn Merrifield, worked from April 1984 until March 1991 for the defendant in the state of Maryland, preparing and editing government contracts. However, the plaintiff currently resides in Nebraska.
In her Amended Complaint (filing no. 4), the plaintiff alleges that while employed by the defendant, she took an approved academic leave of absence to attend graduate school from August 1989 until late May of 1990. When she returned to work on June 1, 1990, the defendant assigned the plaintiff to work offsite, rather than at the defendant's office in Bethesda, Maryland or at her previous location at the defendant's satellite office in Linthicum, Maryland.
Approximately 30 days after resuming work for the defendant, the plaintiff learned that she had been determined to be ineligible for reinstatement of her previous medical and disability benefits because of the defendant's assumption that the plaintiff would be leaving to resume her graduate education in a few months. The plaintiff states that male employees of the defendant who returned from an academic leave of absence did not lose eligibility for reinstatement of benefits. (See Statement of Claim attached to original complaint.) In addition, because she did not receive the monetary value of her lost benefits, the plaintiff asserts that her compensation was effectively reduced below that of male employees performing equivalent duties.
While still employed for the defendant, the plaintiff contracted Lyme Disease and became unable to work full time. Consequently, she agreed to a reduced schedule with the defendant effective October 1, 1990. At that time, the plaintiff purchased medical and disability insurance at the subsidized rate available to the defendant's other part-time employees.
Thereafter, the defendant terminated the plaintiff's part-time employment effective February 28, 1991, alleging lack of available work and inability to place the plaintiff elsewhere in the firm. (See letter from Michael P. Noonberg dated February 1, 1991, attached to Amended Complaint.) However, at the same time, the defendant offered the plaintiff a consulting position as an independent agent, which the plaintiff accepted. (See letter from Eugene H. Kopf, accepted by the plaintiff on March 20, 1991, attached to Amended Complaint.) As an independent contractor, the plaintiff lacked eligibility for subsidized medical insurance and instead purchased a continuation of medical coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"). In addition, the plaintiff lost all disability insurance benefits. The plaintiff continued to work as a consultant for the defendant until mid-July of 1991.
On July 13, 1991, the plaintiff left Maryland and returned to her parents' home in Mississippi, where she entered a hospital for several weeks with a severe bipolar mental condition and psychosis aggravated by the stress of the residual effects of Lyme Disease. The essence of the plaintiff's claim is that she has become disabled by virtue of her mental condition, and that the defendant wrongfully deprived her of health and disability benefits. In the Amended Complaint, the plaintiff seeks damages in the amount of $2,000,000; a monthly stipend equal to the present value of the disability compensation which she contends the defendant denied her; and the costs and expenses of this suit.
According to the plaintiff, the defendant violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"); the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"); and the Rehabilitation Act of 1997, 29 U.S.C. § 701 et seq. The plaintiff also asserts a claim under the Equal Pay Act, 29 U.S.C. § 206(d), which prohibits payment of unequal wages on the basis of sex "for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions." 29 U.S.C. § 206(d)(1).
On July 3, 2001, the plaintiff for the first time filed an administrative charge with the Equal Employment Opportunity Commission ("EEOC"), in the EEOC's Baltimore, Maryland District Office. (See filing no. 8, Attachment A to Exhibit 1.) That claim constituted the first and only administrative charge filed by the plaintiff. On August 10, 2001, the EEOC dismissed the charge as untimely and issued a right-to-sue notice. (Id., Attachment B.) The plaintiff then filed her complaint in this action on November 9, 2001.
ADA CLAIM
As a preliminary matter, the plaintiff's ADA claim must be dismissed because the effective date of the ADA is July 26, 1992, and the plaintiff may not challenge conduct which occurred prior to the ADA's effective date. See, e.g., Tschida v. Ramsey County, 927 F. Supp. 337, 341 (D.Minn. 1996), aff'd, 108 F.3d 1382, 1997 WL 91448 (8th Cir. 1997) (unpublished). The ADA does not have retroactive application. Id.
STATUTES OF LIMITATION Title VII
Under 42 U.S.C. § 2000e-5(e)(1) of Title VII, the plaintiff had 300 days from the alleged unlawful employment practice to file an administrative charge with the EEOC. See, e.g., National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (2002): "Section 2000e-5(e)(1) . . . requires that a Title VII plaintiff file a charge with the Equal Employment Opportunity Commission (EEOC) either 180 or 300 days `after the alleged unlawful employment practice occurred.'" Id. at 2068. In a jurisdiction which has a state or local "deferral agency," the deadline is 300, rather than 180, days.
A "deferral agency" is a state or local "entity with the authority to grant or seek relief with respect to the alleged unlawful practice." National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061, 2070 (2002). "In a State that has [a deferral agency], an employee who initially files a grievance with that agency must file the charge with the EEOC within 300 days of the employment practice; in all other States, the charge must be filed within 180 days." Id.
The Supreme Court has recently emphasized that Title VII bars relief for any discrete act(s) of discrimination which occurred more than 300 days before the filing of a claimant's administrative charge. National Railroad Passenger Corp. v. Morgan, 122 S.Ct. at 2068. "We hold that the statute precludes recovery for discrete acts of discrimination or retaliation that occur outside the statutory time period." Id. "In the context of a request to alter the timely filing requirements of Title VII, this Court has stated that `strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.'" Id. at 2069-70 (citations omitted). "Title 42 U.S.C. § 2000e-5(e)(1) is a charge filing provision that `specifies with precision' the prerequisites that a plaintiff must satisfy before filing suit. . . . A claim is time barred if it is not filed within these time limits." Id. at 2070 (citations omitted).
The first act of discrimination alleged by the plaintiff occurred when she returned from her academic leave of absence and did not receive the same benefits allegedly afforded to male employees returning from an equivalent leave of absence. Thirty days after her return, the defendant notified the plaintiff that her benefits would not be reinstated. Therefore, assuming a date of July 1, 1990 as the date of refusal to grant the plaintiff equal benefits, the 300-day deadline for filing a charge of discrimination based on that event expired on April 27, 1991.
Thereafter, the plaintiff alleges that her termination on February 28, 1991 constituted the defendant's second act of illegal discrimination. The 300-day deadline for filing a charge of discrimination based on that adverse employment decision expired on December 26, 1991.
Equal Pay Act
The Equal Pay Act has a two-year statute of limitations unless the plaintiff claims that the defendant's conduct was willful, in which case a three-year limitations period applies. See 29 U.S.C. § 255(a): "Every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued." The plaintiff's claim under the Equal Pay Act applies only to the first alleged act of discrimination, i.e., the refusal as of July 1, 1990 to reinstate benefits. The statute of limitations expired for that claim, at the latest, three years later on July 1, 1993.
Rehabilitation Act
First, it is doubtful that the plaintiff has a cause of action under the Rehabilitation
Act. The plaintiff relies on § 503 of the Act, 29 U.S.C. § 793, which prohibits certain government contractors from discriminating against persons with disabilities and requires employers holding government contracts in excess of a certain amount to adopt affirmative action programs for the disabled. However, both the Eighth Circuit (which includes Nebraska federal courts) and the Fourth Circuit (which includes Maryland) have ruled that there is no private cause of action under § 503 of the Rehabilitation Act. See Painter v. Horne Bros., Inc., 710 F.2d 143, 144 (4th Cir. 1983): "The sole issue in this appeal is whether there is an implied right of action available under § 503 of the Rehabilitation Act of 1973, 29 U.S.C. § 793. . . . The district court held that there was not. In agreement with all of the circuits which have considered the issue, we affirm." See also Simon v. St. Louis County, Mo., 656 F.2d 316, 319 (8th Cir. 1981), cert. denied, 455 U.S. 976 (1982): "We therefore affirm the district court's holding that there is no private right of action under section 503."
In the event that another section of the Rehabilitation Act might afford the plaintiff a cause of action, e.g., § 504, 29 U.S.C. § 794, the timeliness of an action brought pursuant to § 504 of the Rehabilitation Act is determined by looking to the state statute of limitations for personal injury actions. See Ballard v. Rubin, 284 F.3d 957, 962-63 (8th Cir. 2002):
[T]he Rehabilitation Act does not contain its own statute of limitations. "When Congress has not established a time limitation for a federal cause of action, the settled practice has been to adopt a local time limitation as federal law if it is not inconsistent with federal law or policy to do so." Wilson v. Garcia, 471 U.S. 261, 266-67. . . (1985) (construing a lawsuit brought pursuant to 42 U.S.C. § 1983 as a personal injury action and thus applying the state's statute of limitations for personal injury lawsuits).
This circuit has not applied this practice in a published decision to a claim brought pursuant to the Rehabilitation Act, but those courts that have generally held that such a lawsuit, as a federal civil rights claim, is a personal injury action subject to the state's statute of limitations for such lawsuits. See, e.g., Wolsky v. Medical College of Hampton Roads, 1 F.3d 222, 224 (4th Cir. 1993) ("Rehabilitation Act claims are injuries to individuals and analogous to personal injury claims."); Cheeney v. Highland Community College, 15 F.3d 79, 81 (7th Cir. 1994) ("[I]n borrowing statutes of limitations for federal civil rights cases, the courts should look to state statutes governing personal injury suits."). This conclusion is consistent with this circuit's precedent involving other federal civil rights statutes. See, e.g., Egerdahl v. Hibbing Community College, 72 F.3d 615, 618 (8th Cir. 1995) (adopting the Supreme Court's reasoning in Wilson and applying the state's statute of limitations for personal injury actions to claims of race and gender discrimination brought pursuant to Title VI and Title IX of the Civil Rights Act).
Neb. Rev. Stat. § 25-207 establishes a four-year statute of limitations for personal injury actions. The plaintiff's claim under the Rehabilitation Act applies only to the second alleged act of discrimination, i.e., the plaintiff's termination on February 28, 1991. If the Maryland statute of limitations for personal injuries applies instead of the law of the forum, Md. Code § 5-101 of the Courts Judicial Article establishes a three-year limitations period. In either case, the cause of action, if any, accrued when the plaintiff knew or had reason to know of the injury on which her claim is based. See Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999). On the date of her termination, February 28, 1991, the plaintiff had reason to know that she had suffered an employment "injury," whether or not she knew of a legal basis for seeking redress. If the plaintiff has a claim under the Rehabilitation Act, the statute of limitations expired for that claim, at the very latest, four years thereafter on July 1, 1994, over seven years before the plaintiff filed this action on November 9, 2001.
EQUITABLE TOLLING
In her original complaint, Amended Complaint, other filings and briefs, the plaintiff invokes the doctrine of equitable tolling. Under Title VII, "[t]he application of equitable doctrines . . . may either limit or toll the time period within which an employee must file a charge." National Railroad Passenger Corp. v. Morgan, 122 S.Ct. at 2068. The "time period for filing a charge is subject to equitable doctrines such as tolling or estoppel. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 . . . (1982) (`We hold that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling'). Courts may evaluate whether it would be proper to apply such doctrines, although they are to be applied sparingly." Id. at 2072. In this case, the court concludes that the plaintiff does not meet the legal criteria for equitable tolling of her employment discrimination claims.
The plaintiff has presented medical evidence that since her first hospitalization in July 1991, she has had two additional hospitalizations; she has suffered persistent bouts of depression; and she has been under the care of a psychiatrist or psychologist for her bipolar disorder. During this period, the plaintiff applied for, and obtained social security disability benefits. The decision by the Social Security Administration on January 21, 1994 (plaintiff's Ex. 14) indicates that the plaintiff has suffered from mental and emotional disability since her "onset date" of July 2, 1992. Over the years, the plaintiff's symptoms have been partially controlled, but not eliminated, by medication and therapy. Presently, the plaintiff is self-employed and is able to work on a substantially reduced schedule, without losing eligibility for social security disability benefits.
Generally the courts have not viewed mental incapacity alone as a sufficient basis to toll a statute of limitations. See, e.g., Grant v. McDonnell Douglas Corp., 163 F.3d 1136, 1138 (9th Cir. 1998) (questioning whether the limitations period for claims under section 301 of the Labor Management Relations Act can be tolled for mental incapacity):
We recognize that some courts have allowed equitable tolling of the limitations period for other federal claims, but only in exceptional circumstances, such as institutionalization or adjudged mental incompetence of the litigant. See, e.g., Biester v. Midwest Health Services, Inc., 77 F.3d 1264, 1267-68 (10th Cir. 1996) (noting that the few courts that recognize an exception for mental incapacity have severely limited its application); Lopez v. Citibank, N.A., 808 F.2d 905, 907 (1st Cir. 1987) ("[W]e believe a federal court should assume that the mental illness is not of a sort that makes it equitable to toll the statute-at least absent a strong reason for believing the contrary.").
However, when combined with other extraordinary circumstances which prevent a plaintiff from timely filing, mental disability may provide a basis for equitable tolling. See, e.g., Lake v. Arnold, 232 F.3d 360 (3d Cir. 2000) (federal civil rights claims by mentally retarded plaintiff who had been subjected by her guardians to involuntary tubal ligation):
[W]e have previously held that mental incompetence is not per se a reason to toll the statute of limitations in federal actions. . . .
The unique facts of [the plaintiff's] claim distinguish her case from others where a plaintiff has argued for tolling based on mental incapacity. Generally, under a state law where there is no equitable tolling for mental incapacity, the guardian is expected to protect the ward's interests. . . .
The unusual aspect of this case, then, is that the guardians themselves, who should have been protecting [the plaintiff's] interests, in fact caused the injury to her. . . .
In sum, we are not equitably tolling Pennsylvania's statute of limitations solely because [the plaintiff's] mental incompetence prevented her from recognizing her injury when she was sterilized. Instead . . . we are tolling it due to the failure of the guardian system. The persons, who should have protected [the plaintiff] because of her retardation, instead harmed her. . . .Id. at 371-72.
Equitable tolling is usually reserved for circumstances in which a defendant has actively misled a plaintiff or lulled the plaintiff into delay. See, e.g., Biester v. Midwest Health Services, Inc., 77 F.3d 1264, 1267-68 (10th Cir. 1996) (affirming decision that former employee's mental illness did not toll the Title VII limitations period):
Courts have narrowly construed equitable exceptions to the time limitations set out in Title VII. . . . In this case, the court below properly acknowledged that:
[t]he Tenth Circuit has generally recognized equitable tolling of Title VII time limitations only if the circumstances of the case `rise to the level of active deception which might invoke the powers of equity to toll the limitations period.'. . .
While we have held that the limitations period may be tolled where a claimant has been "actively misled," . . . the Tenth Circuit has never held that mental incapacity tolls the statute of limitations. . . .
However, other courts have recognized this possibility ([for example] if plaintiff [was] adjudged mentally incompetent or institutionalized during [the] filing period).
The few courts which have recognized an exception for mental incapacity have limited the application of this equitable doctrine to exceptional circumstances.
Thus, factors to be considered include whether during the period to be tolled the plaintiff was adjudged incompetent or institutionalized, whether the plaintiff lacked even a general knowledge of his or her rights, or, on the other hand, whether there is evidence that the plaintiff, despite illness, could have pursued his or her claim. Id. at 1268. Regarding knowledge of the plaintiff's rights, see, e.g., Briley v. Carlin, 172 F.3d 567 (8th Cir. 1999): "`[E]quitable tolling is a remedy reserved for circumstances that are truly beyond the control of the plaintiff.'. . . Equitable tolling will extend a deadline missed due to an employee's excusable ignorance, but the doctrine is precluded once it is shown that the employee was generally aware of her rights. . . . Equitable tolling is not available when it is shown that the employee has `general knowledge' of the right not to be discriminated against or the means of obtaining such knowledge."
There is no question that the plaintiff suffers from a mental illness. However, her hospitalization was not continuous, and she was not adjudged legally incompetent or institutionalized at any time in the more than ten-year period since she left the defendant's employment.
The plaintiff's first hospitalization occurred on July 13, 1991. However, by that date, the statute of limitations on the plaintiff's first claim of discrimination had already expired on April 27, 1991, 300 days after the defendant's refusal as of July 1, 1990 to reinstate the plaintiff's benefits. The statutory deadline of April 27, 1991 preceded the plaintiff's first hospitalization by several months. There appears to be no reason why the plaintiff could not have delivered a short, even handwritten, administrative charge to the EEOC or a deferral agency between July 1, 1990 and July 13, 1991. Indeed, the plaintiff continued to work for the defendant during that period.
Similarly, the alleged second act of discrimination by the defendant, i.e., termination of the plaintiff's part-time employment on February 28, 1991, occurred almost five months before her initial hospitalization. Although the 300-day limitations period did not expire with respect to that claim until December 26, 1991, the plaintiff had an opportunity to protect her interests after February 28, 1991, and before her hospitalization.
In addition, the record does not indicate that the plaintiff was mentally incapacitated to the point of being unable to attend to legal affairs. To the contrary, during the period for which she seeks equitable tolling, the plaintiff applied for, and obtained social security disability benefits, an arduous process, albeit with the assistance of a nonattorney representative.
While this court is not unsympathetic with respect to the plaintiff's illness, courts may not, out of compassion, disregard procedural requirements enacted by Congress. Furthermore, the doctrine of equitable tolling does not grant this court discretion to aid one party at the expense of another. As the Supreme Court has noted, the filing of an administrative charge with the EEOC "starts the agency down the road to investigation, conciliation, and enforcement. . . ." Edelman v. Lynchburg College, 122 S.Ct. 1145, 1147 n. 1, 1149 (2002). Timely filing enables the process of investigation and conciliation to proceed while the claim is fresh and evidence remains available. The same cannot be said of a claim filed ten years late.
Recently, the Supreme Court reiterated, in the context of Title VII, that the courts may not invoke equitable doctrines merely out of a sympathetic desire to protect a plaintiff from the harsh results of untimely filing. See National Railroad Passenger Corp. v. Morgan, 122 S.Ct. at 2072, citing Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152 (1984) (per curiam): "Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants."
The court cannot find a legal basis for tolling the statutes of limitation applicable to the plaintiff's claims. Consequently, filing no. 8, the "Defendant Booz, Allen Hamilton Inc.'s Consolidated Motion to Dismiss" will be granted.
THEREFORE, IT IS ORDERED:
1. That filing no. 8, the "Defendant Booz, Allen Hamilton Inc.'s Consolidated Motion to Dismiss," is granted;
2. That this action and the plaintiff's Amended Complaint are dismissed with prejudice on the basis of the applicable statutes of limitation; and
3. That a separate judgment will be entered in accordance with this Memorandum and Order.
JUDGMENT
Pursuant to the Memorandum and Order entered on this date,
IT IS ORDERED, ADJUDGED and DECREED:
1. That judgment is hereby entered for the defendant, Booz, Allen Hamilton Inc., and against the plaintiff, Lisa Lynn Merrifield, on the plaintiff's Amended Complaint;
2. That this action and the plaintiff's Amended Complaint are dismissed with prejudice; and
3. That each party shall bear that party's own costs.