them as untimely, plaintiff's initial contact with the Office with regard to this matter was 451 days after her last day of work.
Plaintiff argues that her EEO contact was timely, because it was within 45 days of October 30, 1996, the day she heard the testimony of Patricia D'Amico in which Ms. D'Amico stated that plaintiff had not been registered in the mandatory registration phase. Plaintiff's argument could be construed to be based on the application of either the discovery rule or equitable tolling, so the court will consider the application of each of these doctrines in turn.
The Discovery Rule
For purposes of the discovery rule, plaintiff discovered her injury at the latest on September 15, 1995 (her last day of work), because that is when she became aware of the actual injury. "A claim accrues in a federal cause of action upon awareness of actual injury, not upon awareness that this injury constitutes a legal wrong." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1386 (3d Cir. 1994). As the court explained in Oshiver, the plaintiff, who was claiming discriminatory discharge, discovered her injury on date of discharge because she "became aware (1) that she had been injured, i.e., discharged, and (2) that this injury had been caused by another party's conduct. That [plaintiff] may have been deceived regarding the underlying motive behind her discharge is irrelevant for purposes of the discovery rule." Id. at 1391. Likewise in the present case, on Ms. Dixon's last day of work, she was aware that she had not been placed in a new job through the PPP program and that this injury had been caused by another party's conduct. This is all that is required under the standard set forth in Oshiver. In addition to this bare minimum, plaintiff had the awareness that other employees with lesser seniority and no EEO complaints had been placed. Therefore she was aware of her actual injury; and because her injury was discovered on that date, plaintiff's claim accrued on that date.
The forty-five day period in 29 C.F.R. § 1614.105(a)(1) is subject to equitable tolling, which functions to stop the limitations period from running were the claim has accrued. See Hart v. J.T. Baker Chemical Co., 598 F.2d 829, 831 (3d Cir. 1979) (the time limitations in Title VII are not jurisdictional; rather, they are analogous to a statute of limitations and thus subject to equitable modifications such as tolling); Oshiver at 1387 (stating the function of equitable tolling). The Third Circuit has explained that "there are three principal, though not exclusive, situations in which equitable tolling may be appropriate: (1) where the defendant has actively misled the plaintiff respecting the plaintiff's cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum." Oshiver at 1387 (citations omitted). The first of these situations, the only one relevant in the present case, is premised on the fundamental principle that a defendant should not be permitted to profit from its own wrongdoing after lulling the plaintiff into inaction. See Oshiver at 1388-89.
In the particular context of employment discrimination cases, the Third Circuit has held that "the equitable tolling doctrine may excuse the plaintiff's non-compliance with the statutory limitations provision at issue when it appears that (1) the defendant actively misled the plaintiff respecting the reason for the plaintiff's discharge, and (2) this deception caused the plaintiff's non-compliance with the limitations provision." Oshiver at 1387 (citing Meyer v. Riegel Products Corp., 720 F.2d 303, 308-09 (3d Cir. 1983)). The court fully articulated the rule this way:
"where the plaintiff has been actively misled regarding the reason for his or her discharge, the equitable tolling doctrine provides the plaintiff with the full statutory limitations period, starting from the date the facts supporting the plaintiff's cause of action either become apparent to the plaintiff or should have become apparent to a person in the plaintiff's position with a reasonably prudent regard for his or her rights."