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Oshiver v. Levin

filed: November 7, 1994.

SHERRY J. OSHIVER, APPELLANT,
v.
LEVIN, FISHBEIN, SEDRAN & BERMAN, APPELLEE.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. D.C. Civil No. 92-07288.

Before: Becker, Roth and Lewis, Circuit Judges.

Author: Lewis

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.

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. §§ 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.

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. § 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).*fn1 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*fn2 to determine whether the plaintiff 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. § 2000e-5(e).*fn3 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).*fn4

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 ...


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