EAST v. GRAPHIC ARTS INDUSTRY TRUST, 718 A.2d 153 (D.C. 1998)

No. 97-SP-613.District of Columbia Court of Appeals.Argued October 7, 1997
Decided October 1, 1998

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, AUBREY E. ROBINSON, JR., J.

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Charles F. Fuller, Bowie, MD, for appellant.

Susan L. Catler, Washington, DC, for appellee.

Before WAGNER, Chief Judge, KING, Associate Judge, Retired,[*] and MACK, Senior Judge.

KING, Associate Judge.

Leslie East (“East”) brought an action in the United States District Court for the District of Columbia against her former employer, Graphic Arts Industry Joint Pension Trust (“JPT”), under the District of Columbia Human Rights Act (“DCHRA” or “Act”), D.C. Code §§ 1-2501 to -2557 (1992 Repl. 1998 Supp.), alleging that she was wrongfully dismissed from her job on account of her gender, pregnancy and family responsibility.[1] At issue here may be whether DCHRA’s one-year statute of limitations is equitably tolled by an employer’s failure to post notice

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of an employee’s rights pursuant to DCHRA as required under the Act.[2]

The United States Court of Appeals for the District of Columbia Circuit, concluding that a question of District of Columbia law was determinative of the issue and that no controlling precedent existed in the decisions of this court, certified to this court under D.C. Code § 11-723(a)[3] the following question:

Under District of Columbia law, and upon the facts described below, does an employer’s failure to comply with the notice-posting requirements of the District of Columbia Human Rights Act (“DCHRA” or “Act”), D.C. Code Ann. § 1-2522 (1992), provide a justification for the equitable tolling of the Act’s one-year statute of limitations for the filing of a private cause of action?

East v. Graphic Arts Indus. Joint Pension Trust, 323 U.S.App.D.C. 278, 107 F.3d 911 (1997). We conclude that, even assuming the applicability of equitable tolling principles where the employer fails to post notice in compliance with the Act, equitable tolling would not be available where, as here, plaintiff failed to file the court action within a reasonable time after she obtained — or by due diligence could have obtained — the information necessary to file her complaint.

I.
East began her employment with JPT in November 1992.[4] Her responsibilities included secretarial and administrative work. Soon after her employment began, East learned that she was pregnant. She maintains that her pregnancy did not affect her ability to perform her job, and that her superiors commended her numerous times on the quality and promptness of her work. In March 1993, East’s immediate supervisor Arthur Dinkin became aware that East was pregnant. On March 19, 1993, Dinkin told East that she was being terminated because “it wasn’t working out.” East received no further explanation for the termination, despite her repeated requests for an explanation.

East claims that she first learned of DCHRA at a social event on March 6, 1994, nearly a year after she was terminated. The next day, East telephoned the District of Columbia Department of Human Rights (“DHR”) and learned of the procedure for filing an administrative complaint. She received the forms in the mail and completed and returned them in person on March 15, 1994, just days before the expiration of the one-year limitations period for filing an administrative complaint under DCHRA.[5] East claimed that she was unaware at that time of her right to file a discrimination suit in court under DCHRA.[6]

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In June 1994, East consulted with an attorney who informed her of her right to file a discrimination suit in a District of Columbia court. On March 3, 1995, nine months after learning from the attorney of her right to file suit and nearly two years after the alleged discriminatory event occurred, East brought this action in the United States District Court for the District of Columbia.[7]

According to East and two former JPT employees, there were no notices posted at JPT informing employees of their rights under DCHRA or any of the federal civil rights statutes.[8]

II.
DCHRA contains no express provisions for tolling the Act’s one-year statute of limitations. See D.C. Code § 1-2544. Further, the District of Columbia is one of a minority of jurisdictions that has not adopted a general equitable “saving” statute to toll statutes of limitations in cases of reasonable mistake. See Bond v. Serano, 566 A.2d 47, 48, 52 (Farrell, J., concurring) (D.C. 1989). Thus, we have refused to toll the statute of limitations in the case of plaintiff’s good faith mistake of forum. Sayyad v. Fawzi, 674 A.2d 905 (D.C. 1996) (filing of a timely complaint, which is later dismissed without prejudice because plaintiff failed to properly serve defendants, does not toll statute of limitations); Bond, supra, 566 A.2d 47 (filing of a diversity action against the District of Columbia in federal court does not toll statute of limitations even where subsequent unrelated case held that federal courts lacked pendent party jurisdiction over the District of Columbia resulting in dismissal of the diversity action). We have also said that

[r]ejection of the application of equitable tolling on a case-by-case basis, where a trial judge would weigh the diligence of the defaulting party against any prejudice to the opponent of the suit, rests on the belief that where the legislature has provided no savings statute, courts would exceed their prescribed role by providing a remedy where the legislature has determined that none should lie.

Sayyad, supra, 674 A.2d at 906 (citing Bond, supra, 566 A.2d at 52, 53-55) (Farrell, J., concurring) (other citations omitted)). See also Kavanagh v. Noble, 332 U.S. 535, 539, 68 S.Ct. 235, 92 L.Ed. 150 (1947) (“[Limitations] periods are established to cut off rights, justifiable or not, that might otherwise be asserted and they must be strictly adhered to by the judiciary. Remedies for resulting inequities are to be provided by [the legislature], not the courts.”) (citation omitted).

We do recognize, however, at least two limited exceptions to our generally strict application of statutes of limitations: the lulling doctrine and the discovery rule.[9] Bond, supra, 566 A.2d at 50 (Farrell, J., concurring). Under the lulling doctrine, “a defendant cannot assert ‘the bar of the statute of limitations, if it appears [the defendant] has

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done anything that would tend to lull the plaintiff into inaction, and thereby permit the limitation prescribed by the statute to run. . . .’ ” Id. (alteration in original) (quotin Hornblower v. George Washington University, 31 App.D.C. 64, 75
(1908)). This court has construed the lulling doctrine narrowly. Id. (citing Bailey v. Greenberg, 516 A.2d 934, 937
(D.C. 1986)). A second exception, the discovery rule,

is designed to prevent the accrual of a cause of action before an individual can reasonably be expected to discover that he has a basis for legal redress, [and] the statute should not commence until a claimant knows, or through the exercise of due diligence, should know, that his injury resulted from someone’s wrongdoing.

Bussineau v. President Dirs. of Georgetown College, 518 A.2d 423, 430 (D.C. 1986); see also Kidwell v. District of Columbia, 670 A.2d 349 (D.C. 1996).

Neither the lulling doctrine nor the discovery rule applies to the present case. With respect to lulling, our case law requires some affirmative action on the defendant’s part that goes beyond failure to post notice of the law.[10] We have noted that “mere silence, failure to disclose, or ignorance of facts establishing a claim” generally do not rise to the level of affirmative misconduct. Young, supra note 10, 412 A.2d at 1192.

With respect to the discovery rule, our caselaw makes clear that the rule concerns situations where the fact of an injury is not readily apparent, and establishes the accrual date for limitations purposes as the time when a plaintiff discovered or should have discovered all of the essential elements of a possible cause of action. Farris v. Compton, 652 A.2d 49, 54
(D.C. 1994).[11] Thus, “for a cause of action to accrue where the discovery rule is applicable, one must know or by the exercise of reasonable diligence should know (1) of the injury, (2) its cause in fact, and (3) some evidence of wrongdoing.” Bussineau, supra, 518 A.2d at 435.

The discovery rule does not apply to circumstances, such as those presented here, where the plaintiff has failed to discover the relevant law even though the existence of an injury is apparent. See Kidwell, supra, 670 A.2d at 353 (“[The filing] deadline is tolled ‘until the facts that would support a charge of discrimination under Title VII were apparent or should have been apparent. . . .’ “) (emphasis added) (citation omitted). Although East learned of her possible remedies only on March 6, 1994, the discovery rule does not apply in this case because the focus of the rule is on when she gained th general knowledge that her firing by her employer was wrongful, not on when she learned of precise legal remedies for the firing. Her general knowledge that her termination was improper was enough to require her to seek legal assistance, and failure to seek such advice does not toll the statute of limitations under the discovery rule. Kazanzas v. Walt Disney World Co., 704 F.2d 1527, 1530 (11th Cir. 1983) (citations omitted).

III.
East contends that the doctrine of equitable tolling should apply in this case because of JPT’s failure to post the required notice under DCHRA. She argues that the one-year limitation period did not begin to run until March 6, 1994, when she first learned of her possible right to recover under DCHRA. Thus, the complaint filed March 3, 1995, just under one year later, was timely. She relies on a line of cases in which federal courts have held that equitable tolling may be proper

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where an employer has failed to post required notice under the ADEA or Title VII. See, e.g., Kale v. Combined Ins. Co. of America, 861 F.2d 746 (1st Cir. 1988); McClinton v. Alabama By-Products Corp., 743 F.2d 1483 (11th Cir. 1984); Vance v. Whirlpool Corp., 716 F.2d 1010 (4th Cir. 1983); Earnhardt v. Puerto Rico, 691 F.2d 69 (1st Cir. 1982);[12] Kephart v. Institute of Gas Tech., 581 F.2d 1287 (7th Cir. 1978).

Every case East cites, however, involved tolling of the 180-day or 300-day period[13] for filing notice of intent to file an administrative claim under the ADEA or Title VII. None of the cited cases hold that failure to post notice permits equitable tolling of the statute of limitations for filing suit in court under the ADEA or Title VII.[14] Indeed, several federal cases have explicitly distinguished between tolling the shorter administrative statute of limitations and tolling the two-year statute of limitations for filing suit in court.[15] See Kazanzas, supra, 704 F.2d at 1530; McClinton, supra, 743 F.2d at 1486 n. 5 (citing Kazanzas). East was unable to cite a single federal case in which a limitations period for filing a legal action was tolled based solely[16] on an employer’s failure to post required notice under the ADEA or Title VII.[17]

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In Kazanzas, the district court had ruled that the limitations period for filing an administrative claim should be equitably tolled based on the employer’s failure to post the required notice of employees’ rights under the ADEA and on Kazanzas’ resulting ignorance of the ADEA. The district court also ruled that the two-year statute of limitations for filing an action in court begins to run from the date on which the administrative claim is filed rather than from the date on which the cause of action accrues, and therefore did not address the issue of whether the two-year statute of limitations was also tolled. On appeal, the Eleventh Circuit held first that equitable modification of the 180-day period was warranted because of the employer’s failure to post notice of the requirement of the ADEA. The court also held that the two-year statute of limitations begins to run from the date on which the cause of action accrues, and that the suit was time-barred because “the factors which led the district court to equitably modify the 180-day provision do not mandate the tolling of the [two-year] statute of limitations.” Kazanzas, supra, 704 F.2d at 1530.

The Kazanzas court weighed several factors in determining that the two-year period should not be tolled, including “the normal rule that ‘[i]gnorance of . . . legal rights or failure to seek legal advice, [does] not toll the statute,’ ” id.
(alteration in original) (citations omitted); the fact that the required notice did not mention the two-year limitations period, id.; and Kazanzas’ actual awareness of his right to be free of age discrimination even if he may have been unaware of the ADEA itself, id. at 1530-31.[18] Given Kazanzas’ general awareness of his rights at the time of his discharge, the court noted that his ignorance of the ADEA itself was “not important . . . because he did nothing to pursue his claim for more than two years.” Id. at 1531.

While federal precedent on the subject of equitable tolling of the ADEA and Title VII may be persuasive in some circumstances, it is not necessarily dispositive of whether equitable tolling is available under DCHRA. Although we have recognized that DCHRA is analogous to the ADEA and Title VII in some important respects, see, e.g., Arthur Young Co. v. Sutherland, 631 A.2d 354, 361 n. 17 (D.C. 1993) (“This court has ‘often looked to cases construing Title VII . . . to aid us in construing the [DCHRA]’ ” because “[t]he anti-discrimination provisions of both statutes are substantially similar”) (citations omitted), we have also observed that it is different from the federal statutes in other significant ways, cf. Anderson, supra note 6, 552 A.2d at 862-63 (distinguishing Title VII’s requirement that plaintiff file administrative claim prior to lawsuit and DCHRA’s “ab initio election of remedies”).[19] Because

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DCHRA is not identical to the federal statutes, therefore, federal precedent allowing equitable tolling does not necessarily dictate the same result under DCHRA. In any event, for the reasons stated below, we need not decide whether failure to post required notice under DCHRA tolls the one-year statute of limitations for filing a civil action.

IV.
The district court ruled that East’s suit in federal court was not timely filed because she waited nearly a year from the time she first learned of her right to be free from discrimination under DCHRA before filing her action. The district court stated:

The[ ] . . . facts indicate that Plaintiff had at least a general knowledge of her right to be free from discrimination in employment decisions [on March 6, 1994, nearly a year after she was terminated]. Inexplicably, Plaintiff waited close to a year before she filed this lawsuit on March 3, 1995. . . . Thus, the Court will not toll the time limit for the approximately two years, following her termination, it took Plaintiff to obtain legal counsel and file her lawsuit.

Memorandum Opinion and Order, No. 95-450, slip op. at 5 (D.D.C. February 20, 1996) (emphasis added). We agree with the trial court on this point.

Although we have never expressly so held, we have intimated that even where equitable tolling is proper, a plaintiff must nonetheless bring the action within a reasonable period upon acquiring the information needed to support the plaintiff’s cause of action. See Kidwell, supra, 670 A.2d at 353 n. 8 (quoting Cada v. Baxter Healthcare Corp., 920 F.2d 446, 453
(7th Cir. 1990)).[20]

In Cada, the Seventh Circuit held that “a plaintiff who invokes equitable tolling to suspend the statute of limitations must bring suit within a reasonable time after he has obtained, or by due diligence could have obtained, the necessary information.” Cada, supra, 920 F.2d at 453. The Cada court emphasized that the doctrine of equitable tolling does not necessarily give plaintiff the entire statutory period from the time the plaintiff acquires the missing information in which to file a complaint.[21] The court explained the basis for its holding as follows:

We do not think equitable tolling should bring about an automatic extension of the statute of limitations by the length of the tolling period or any other definite term. It is, after all, an equitable doctrine. It gives the plaintiff extra time if he needs it. If he doesn’t need it there is no basis for depriving the defendant of the protection of the statute of limitations.

Id. at 452 (citation omitted). Cada first learned enough information to bring his action some two months after his cause of action arose, which was well within the applicable statute of limitations. He then waited nearly eight months to file his complaint, which he filed about two weeks outside the 300-day limitation period as measured from

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the time the cause of action arose. The Seventh Circuit held that Cada’s delay in filing was not reasonable. In this case, East delayed her filing even longer, waiting close to a year from the date on which she became aware of her right to be free of discrimination under DCHRA[22] and two years from the date on which the alleged discrimination occurred before filing suit. As we have said, we agree with the trial court that such a delay was unreasonable.[23]

Statutes of limitations serve an important judicial function. As the court said in Cada:

Statutes of limitations are not arbitrary obstacles to the vindication of just claims, and therefore they should not be given a grudging application. They protect important social interests in certainty, accuracy, and repose.

Id. at 452-53. It is particularly important that employment discrimination suits be brought promptly. As this court noted in Davis v. Potomac Electric Power Co., supra note 6, 449 A.2d at 280:

Claims of discrimination advanced by employees against their employers are apt to become stale quickly because the evidence necessary to support or refute such claims often consists of subjective estimations of the discriminatory ‘climate’ at the workplace as well as business records and other forms of impermanent data.

The Cada court highlighted another important reason for promptness in bringing discrimination suits:

The statute of limitations is short . . . in most employment cases because delay in the bringing of suit runs up the employer’s potential liability; every day is one more day of backpay entitlements. We should not trivialize the statute of limitations by promiscuous application of tolling doctrines.

Cada, supra, 920 F.2d at 453. Equitable tolling, when applicable, does not extend the statute of limitations indefinitely. Plaintiff is required to bring suit within a reasonable time after she obtains, or by due diligence could obtain, the information necessary to pursue the claim; unless the plaintiff does so, she cannot avoid the bar of limitations. Otherwise, the policies underlying the one-year statute of limitations for discrimination claims under the DCHRA would be undermined.

Even assuming the applicability of equitable tolling principles where an employer fails to comply with the notice-posting requirements of the DCHRA, the doctrine would not operate under the circumstances presented here, where plaintiff failed to file her action in court within a reasonable time after she obtained, or by due diligence could have obtained, the information necessary to file her complaint.[24]

The clerk shall certify this answer to the United States Court of Appeals for the District of Columbia Circuit.

So ordered.

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MACK, Senior Judge.

Without expressing any view as to applicable law, i concur in the conclusion only (i.e., that under the specific facts of this casr, the employee cannot prevail).

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