The opinion of the court was delivered by: KATZ
AND NOW, this 19th day of December, 1997, after consideration of defendant's Motion for Summary Judgment, and the response and the reply thereto, it is hereby ORDERED that said motion is GRANTED.
Defendant's sole argument for summary judgment is that plaintiff failed to exhaust her administrative remedies before filing the present suit, in that she did not timely file an EEO complaint within 45 days as required by 29 C.F.R. § 1614.105(a)(1). Plaintiff responds that the filing requirement should be equitably tolled.
This case concerns a question of the administration of a Defense Department program called the Priority Placement Program (the PPP). The PPP program provides a mechanism for reassigning civilian employees of the Department who are laid off by giving them priority consideration for job vacancies in other Department facilities. The Department assigns coordinators to maintain lists of eligible laid-off employees, and when a defense agency has a job vacancy, it must consult the appropriate coordinator to determine if any eligible displaced workers are available to fill the job.
Plaintiff Gloria Dixon is an African-American and was an employee at the Philadelphia Naval Shipyard. Her job from November, 1992 until her termination when the base closed in September, 1995 was as the Priority Placement Program Coordinator at the shipyard. Her duties were to administer the PPP program.
Plaintiff registered in the program on May 3, 1995, during an early registration period. She limited her registration to her then-series and grade, and limited her area of consideration to two Department of Defense facilities. On May 15, 1995, plaintiff received a Reduction-in-Force notice that included a notice that all employees must register during the mandatory PPP registration period. An employee who was mandatorily registered would be listed for any vacancies within the employee's "commuting area" and as many as three grade-levels below the employee's then-current grade. Plaintiff registered on that date in accordance with the mandatory registration requirements. During April, 1995 Patricia D'Amico, plaintiff's supervisor, told plaintiff that she would assume the responsibility of making certain that the employees who registered during the early registration phase would be brought into compliance with the mandatory registration requirements. Pl. Aff. P 3. Plaintiff was not placed into a new position through the PPP program, and other employees with less seniority were placed into job vacancies for which plaintiff was qualified and registered. Plaintiff's last day of work was September 15, 1995.
On December 10, 1996, plaintiff contacted the EEO Office by letter. She filed a complaint on February 10, 1997, stating that she had been discriminated against because of race, color, and reprisal. She alleged that "on or about October 30, 1996 I became aware that I was denied an offer of employment due to Patricia D'Amico and John Conwell limiting my employment opportunities by not expanding my area of consideration in PPP." This awareness apparently was gained after hearing Patricia D'Amico testify for the Navy at the trial of another set of employment discrimination claims brought by plaintiff. Dixon's complaint stated that the date on which the alleged discrimination took place was September 15, 1995. The EEO Office dismissed plaintiff's complaint as untimely, because she "did not contact the EEO Office within 45 days of 15 September 1995, the date of your separation and the final date that you would have known that the area of consideration in PPP that you requested was not changed during mandatory registration." Plaintiff filed this suit, alleging that defendant, by failing to select her for positions within her registration while selecting persons with less seniority and no pending EEO complaints, discriminated against her on account of her race and in reprisal for filing EEO complaints in the past.
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.
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. ...