1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-7-1994

Oshiver v. Levin, Fishbein, Sedran & Berman

Precedential or Non-Precedential:

Docket 93-1366

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Recommended Citation

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 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 93-1366 

 ___________ 

 SHERRY J. OSHIVER 

 Appellant, 

 vs. 

 LEVIN, FISHBEIN, SEDRAN & BERMAN 

 Appellee. 

 ___________ 

 APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

 (D.C. Civil No. 92-07288) 

 ___________ 

 ARGUED OCTOBER 25, 1993 

 BEFORE: BECKER, ROTH and LEWIS, Circuit Judges. 

 (Filed November 7, 1994) 

 ___________ 

William L. McLaughlin, Jr. (ARGUED) 

23 South Valley Road 

Post Office Box 494 

Paoli, PA 19301 

 Attorney for Appellant
Christine C. Fritton 

Patrick W. Kittredge (ARGUED) 

Kittredge, Donley, Elson, Fullem & Embick 

421 Chestnut Street 

Fifth Floor 

Philadelphia, PA 19106 

 Attorneys for Appellee

 ___________ 

 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. 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).1 We accept all facts pleaded as true 

 

1. While the language of Fed.R.Civ.P. 8(c) indicates that a 

statute of limitations defense cannot be used in the context of a 

Rule 12(b)(6) motion to dismiss, an exception is made where the 

complaint facially shows noncompliance with the limitations 

period and the affirmative defense clearly appears on the face of 

the pleading. See Trevino v. Union Pacific Railroad Co., 916 

F.2d 1230 (7th Cir. 1990); 5A Wright and Miller, Federal Practice 

and Procedure: Civil 2d, § 1357. 
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 pleadings2 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 

 

2. We may also consider matters of public record, orders, 

exhibits attached to the complaint and items appearing in the 

record of the case. 5A Wright & Miller, Federal Practice and 

Procedure: Civil 2d, § 1357; Chester County Intermediate Unit v. 

Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990). 
discrimination with the EEOC. 42 U.S.C. § 2000e-5(e).3 

Therefore, since Oshiver filed a complaint with the PHRA, 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).4

 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 

 

3. 42 U.S.C. § 2000e-5(e) states, in pertinent part: 

 A charge under this section shall be filed within 

one hundred and eighty days after the alleged 

unlawful employment practice occurred . . . except 

that in a case of unlawful employment practice 

with respect to which the person aggrieved has 

initially instituted proceedings with a State or 

local agency with authority to grant or seek 

relief from such practice or to institute criminal 

proceedings with respect thereto upon receiving 

notice thereof, such charge shall be filed by or 

on behalf of the person aggrieved within three 

hundred days after the alleged unlawful employment 

practice occurred. . . . 

42 U.S.C. § 2000e-5(e). 

4. While Davis was brought under the Age Discrimination in 

Employment Act of 1967 ("ADEA"), Title VII and the ADEA have been 

given parallel constructions due to their similarities in purpose 

and structure. Kocian v. Getty Refining & Marketing Co., 707 

F.2d 748, 752 n.3 & n.4 (3d Cir. 1983). See also Oscar Mayer & 

Co. v. Evans, 441 U.S. 750, 756 (1979). 
discuss each of these doctrines and then apply them in turn to 

determine whether Oshiver timely filed her discrimination claims. 

 A. The Discovery Rule

 We begin with the discovery rule.5 As a general rule, 

the statute of limitations begins to run when the plaintiff's 

cause of action accrues. Cada, 920 F.2d at 450. As the court in 

Cada noted, the accrual date is not the date on which the wrong 

that injures the plaintiff occurs, but the date on which the 

plaintiff discovers that he or she has been injured. Id. There 

will, of course, be times when the aggrieved person learns of the 

alleged unlawful employment practice, for example, at the very 

moment the unlawful employment practice occurs; in such cases the 

statutory period begins to run upon the occurrence of the alleged 

unlawful employment practice. However, there will also be 

occasions when an aggrieved person does not discover the 

occurrence of the alleged unlawful employment practice until some 

 

5. Because the discovery rule's origins are in products 

liability and medical malpractice cases, the rule finds perhaps 

its most natural application in cases where legal injury flows 

from physical injury. The discovery rule, however, is not 

limited in its application to situations involving bodily injury, 

and may also apply in cases involving alleged employment 

discrimination, where the actual injury at issue is not physical 

in the same way that bodily injury is physical. In this regard 

we agree with the court in Cada that the discovery rule is 

implicit in Delaware State College v. Ricks, 449 U.S. 250 (1980). 

Cada, 920 F.2d at 450. In Ricks, a Title VII case, the Supreme 

Court held that the statute of limitations began to run "at the 

time the [alleged discriminatory] tenure decision was made and 

communicated to Ricks." Ricks, 449 U.S. at 258 (emphasis 

supplied). See also Ohemeng v. Delaware State College, 643 F. 

Supp. 1575, 1580 (D. Del. 1986) (Roth, J.) (applying discovery 

rule in Title VII setting). 
time after it occurred. The discovery rule functions in this 

latter scenario to postpone the beginning of the statutory 

limitations period from the date when the alleged unlawful 

employment practice occurred, to the date when the plaintiff 

actually discovered he or she had been injured. Cada, 920 F.2d 

at 450. In either scenario, once the plaintiff's cause of action 

has accrued, that is, once the plaintiff has discovered the 

injury, the statutory limitations period begins to run and the 

plaintiff is afforded the full limitations period, starting from 

the point of claim accrual, in which to file his or her claim of 

discrimination. Id. at 452 ("[I]t is entirely clear that the 

discovery rule if applicable gives the plaintiff the entire 

statute of limitations period in which to sue, counting from the 

date of discovery. . . ."). 

 A claim accrues in a federal cause of action as soon as 

a potential claimant either is aware, or should be aware, of the 

existence of and source of an injury. See Keystone Insurance Co. 

v. Houghton, 863 F.2d 1125, 1127 (3d Cir. 1988) (stating this 

general proposition in the context of determining the accrual 

date of a RICO cause of action). A different rule, we have 

noted, would require an insufficient degree of diligence on the 

part of the potential claimant. Keystone Insurance, 863 F.2d at 

1127. With specific regard to Title VII claims, and in a similar 

vein, the United States District Court for the District of 

Delaware observed that the limitations period for Title VII 

claims begins to run, under federal law, "`when the plaintiff 

knows or reasonably should know that the discriminatory act has 
occurred.'" Ohemeng v. Delaware State College, 643 F. Supp. 

1575, 1580 (D.Del. 1986) (Roth, J.) (quoting McWilliams v. 

Escambia County School Board, 658 F.2d 326, 330 (5th Cir. 1981)). 

Thus, the "polestar" of the discovery rule is not the plaintiff's 

actual knowledge of injury, but rather whether the knowledge was 

known, or through the exercise of reasonable diligence, knowable 

to the plaintiff. See Bohus v. Beloff, 950 F.2d 919, 925 (3d 

Cir. 1991) (construing Pennsylvania law and applying the 

discovery rule in connection with a medical malpractice cause of 

action) (citations omitted). In short, the discovery rule 

functions to delay the initial running of the statutory 

limitations period, but only until the plaintiff has discovered 

or, by exercising reasonable diligence, should have discovered 

(1) that he or she has been injured, and (2) that this injury has 

been caused by another party's conduct. Bohus, 950 F.2d at 924. 

 The question arises whether a plaintiff's discovery of 

the actual, as opposed to the legal, injury is sufficient to 

trigger the running of the statutory period. In other words, 

does the statutory period begin to run upon a plaintiff's 

learning that he or she has been discharged from employment, for 

example, or does it begin to run only after a plaintiff comes to 

realize that the discharge constituted a legal wrong? We have in 

the past stated that a claim accrues in a federal cause of action 

upon awareness of actual injury, not upon awareness that this 

injury constitutes a legal wrong. See Keystone Insurance, 863 

F.2d at 1127. See also Bohus, 950 F.2d at 924-25 (In order for a 

claim to accrue, "[t]he plaintiff need not know the exact medical 
cause of the injury; that the injury is due to another's 

negligent conduct; or that he [or she] has a cause of action.") 

(citations omitted). Likewise, by indicating that the discovery 

rule postpones the beginning of the limitations period from the 

date a plaintiff was wronged until the date a plaintiff discovers 

that he or she was injured, the Court of Appeals for the Seventh 

Circuit in Cada has, at least by implication, suggested that 

awareness of actual injury, as opposed to legal injury, is 

sufficient to trigger the running of the statutory period. Cada, 

920 F.2d at 450. See also Merrill v. Southern Methodist 

University, 806 F.2d 600, 604-05 (5th Cir. 1986) (stating that 

the limitations period in Title VII cases starts to run on the 

date when the plaintiff knows or reasonably should know that the 

discriminatory act has occurred, not on the date the victim first 

perceived that a discriminatory motive caused the act). 

 B. Equitable Tolling

1. 

 We preface our analysis of the equitable tolling 

doctrine with the observation that the time limitations set forth 

in Title VII are not jurisdictional. See Hart v. J.T. Baker 

Chemical Co., 598 F.2d 829, 831 (3d Cir. 1979). These time 

limitations are analogous to a statute of limitations and are, 

therefore, subject to equitable modifications, such as tolling. 

Id. Such treatment of Title VII's time limitation provisions is 

in keeping with our goal of interpreting humanitarian legislation 

in a humane and commonsensical manner so as to prevent 

unnecessarily harsh results in particular cases. Id. 
 Where the filing requirements are considered 

"jurisdictional," non-compliance bars an 

action regardless of the equities in a given 

case. Thus equitable tolling could not be 

invoked where, for example, the employer 

prevented the employee from asserting his or 

her rights by actively concealing or 

misleading the discharged employee as to the 

true reasons for the discharge. We conclude 

therefore that the timing provisions should 

be subject to a similar type of equitable 

tolling as is applied to statutes of 

limitations. 

Id. at 832. 

 Equitable tolling functions to stop the statute of 

limitations from running where the claim's accrual date has 

already passed. Cada, 920 F.2d at 450. We have instructed 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. School District of City of 

Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir. 1981) (quoting

Smith v. American President Lines, Ltd., 571 F.2d 102, 109 (2d 

Cir. 1978); see also Miller v. Beneficial Management Corp., 977 

F.2d 834, 845 (3d Cir. 1992) (citation omitted).6

 

6. Our discussion of equitable tolling in this case is germane 

only to those cases in which the doctrine is considered in 

connection with a defendant's deception regarding the plaintiff's 

cause of action. The other two established situations to which 

equitable tolling applies give rise to equitable considerations 

wholly unrelated to our discussion of the doctrine here. 
 In Meyer v. Riegel Products Corporation, 720 F.2d 303 

(3d Cir. 1983), a case involving the Age Discrimination in 

Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., we observed 

that although the time limitations prescribed by Congress must be 

"treated seriously," cases may arise "`where the employer's own 

acts or omissions have lulled the plaintiff into foregoing prompt 

attempts to vindicate his [or her] rights.'" Meyer, 720 F.2d at 

307 (quoting Bonham v. Dresser Industries, Inc., 569 F.2d 187, 

193 (3d Cir. 1977)). In such cases, equitable tolling may be 

appropriate. Id. See also Smith v. American President Lines, 

Ltd., 571 F.2d 102, 109 n.12 (2d Cir. 1978) ("The primary 

consideration underlying statutes of limitations is that of 

fairness to the defendant . . . The most common and justifiable 

of the exceptions to the running of statutes of limitations[, 

therefore,] is based upon affirmative acts of the defendant which 

have impeded suit."). We have held, in the context of employment 

discrimination cases, 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. See

Meyer, 720 F.2d at 308-09. 

 The Meyer and Hart cases are helpful in our present 

endeavor to sketch the contours of the equitable tolling doctrine 

insofar as it applies to cases involving alleged employer 

deception. 
 In Hart, a defendant employer discharged the plaintiff, 

a female biochemist. At the time of her discharge, the plaintiff 

(Hart) was given four reasons for her dismissal, all unrelated to 

her gender. Hart, 598 F.2d at 830 n.2. Hart filed an untimely 

charge of gender discrimination with the EEOC. She later brought 

suit under Title VII. The district court granted the employer's 

motion for summary judgment, finding that (1) Hart had untimely 

filed her EEOC charge and (2) the facts of the case did not call 

for equitable tolling. Id. at 831. 

 We affirmed the district court's refusal to apply the 

equitable tolling doctrine, finding that all of the facts upon 

which Hart's charge of discrimination was predicated were known 

to her on the date of her discharge. Id. at 833. 

 As a result, it cannot be said that the 

district court erred in deciding that at the 

time of plaintiff's discharge, her suspicions 

were sufficient to lead a reasonable person 

to inquire further into the reasons for her 

discharge. Accordingly, the district court 

committed no reversible error in declining to 

toll the filing requirements of Title VII. 

Id. at 834. We also expressed concern over the extended period 

between Hart's discharge and her first contact with the EEOC, a 

period of 421 days. In the absence of evidence that the 

defendant employer had contributed to Hart's delay in filing, it 

could be "extremely unfair," we reasoned, to require the employer 

to defend against Hart's lawsuit. Id. 

 The Plaintiff in Meyer was 61 years old when he was 

discharged. Suspecting age discrimination, Meyer contacted his 

former employer shortly after his termination and sought the 
reason for his dismissal. The employer informed Meyer that he 

had been dismissed due to a "reorganization." Meyer, 720 F.2d at 

305. After filing a charge of age discrimination with the United 

States Department of Labor, Meyer brought suit against the 

employer. Meyer, 720 F.2d at 306. The district court granted 

the employer's motion for summary judgment, finding that Meyer 

had failed to file a timely charge with the Department of Labor. 

In arriving at this conclusion, the court explicitly rejected 

Meyer's plea to invoke the doctrine of equitable tolling, noting 

that his own statements revealed that he suspected from the day 

of his discharge that he had been dismissed because of his age. 

Id. at 306. 

 We reversed the district court's summary dismissal of 

Meyer's ADEA claim. We found that he had alleged acts on the 

part of the employer that, taken as alleged, could persuade a 

court to activate the doctrine of equitable tolling. We then 

emphasized the differences between Meyer and Hart: 

 In Hart, plaintiff-employee suspected at the 

time of her dismissal that gender may have 

played an operative factor in the discharge. 

She did not file the required charge letter, 

however, until 477 days after the 

discriminatory act allegedly took place. The 

applicable limitation period had been 180 

days. In affirming the district court's 

rejection of the equitable tolling claim, we 

noted that "the facts upon which her charge 

was predicated were known to her on the date 

of the discharge." In short, plaintiff 

simply did not allege that defendant had 

anything to do with her untimeliness. The 

court observed that, had plaintiff inquired 

into the reasons for her dismissal and then 

alleged that she had been deceived, an 

entirely different issue would have been 
presented. Here, however, plaintiff Meyer 

alleges precisely what the plaintiff in Hart

failed to allege: that defendants deceived 

him into postponing the filing of a claim. 

Here, too, plaintiff did precisely what the 

Hart court suggests: he asked defendants for 

an explanation of his dismissal. 

Id. at 308 (citation omitted) (emphasis supplied). 

2. 

 We next address the important question concerning the 

amount of time a plaintiff is afforded in which to file an 

otherwise untimely charge or complaint when equitable tolling is 

activated by the defendant employer's deception regarding the 

plaintiff's cause of action. We have not, prior to this case, 

provided an answer. 

 We begin by restating the fundamental rule of equity 

that a party should not be permitted to profit from its own 

wrongdoing. This basic principle underlies the equitable tolling 

doctrine itself. See Miklavic v. USAir Inc., 21 F.3d 551, 557 

(3d Cir. 1994). To allow a defendant to benefit from the statute 

of limitations defense after intentionally misleading the 

plaintiff with regard to the cause of action, thereby causing the 

plaintiff's tardiness, would be "manifestly unjust." Cf. 

Miklavic, 21 F.3d at 557. See also LaVallee Northside Civic 

Ass'n v. Coastal Zone Management, 866 F.2d 616, 625 (3d Cir. 

1989) (stating that equitable tolling is based on the equitable 

principle that, having unfairly lulled the plaintiff into 

inaction, the defendant may not profit by such wrongful conduct 

through invocation of the statute of limitations defense). 
 Against the back-drop of this principle, we are lead to 

conclude that where a defendant actively misleads the plaintiff 

regarding the reason for the plaintiff's dismissal, the statute 

of limitations will not begin to run, that is, will be tolled, 

until the facts which would support the plaintiff's cause of 

action are apparent, or should be apparent to a person with a 

reasonably prudent regard for his or her rights. This is the 

rule set forth by the Court of Appeals for the Fifth Circuit in 

Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th 

Cir. 1975). It has been recognized and applied by a number of 

our sister circuits, see Vaught v. R.R. Donnelley & Sons Co., 745 

F.2d 407, 410-12 (7th Cir. 1984) (applying Reeb and referring to 

it the "seminal case" in the area of equitable tolling); 

Wilkerson v. Siegfried Ins. Agency, Inc., 683 F.2d 344, 345-46 

(10th Cir. 1982) (applying Reeb); Miranda v. B & B Cash Grocery 

Store, Inc., 975 F.2d 1518, 1531-32 (11th Cir. 1992) (same), and 

we adopt it here. 

 In Reeb, the plaintiff, a woman, was employed by 

Economic Opportunity of Atlanta (the "EOA"). The EOA terminated 

Reeb's employment, citing a "limitation of funds" as the reason. 

Reeb, 516 F.2d at 926. Nearly seven months later, Reeb learned 

that soon after dismissing her, the EOA had given her former 

position to an allegedly less qualified male employee. Upon 

learning of her replacement, Reeb filed charges of gender 

discrimination with the EEOC. The district court dismissed the 

case on the ground that Reeb had failed to file her 

administrative complaint within ninety days of the alleged 
discriminatory discharge. Id. The court of appeals vacated the 

district court's judgment dismissing the case. Id. at 931. 

Finding that the 90-day period did not begin to run until Reeb 

had learned of the EOA's replacement hire, the court of appeals 

stated: 

 [I]t is alleged that the EOA actively sought 

to mislead Mrs. Reeb in informing her that 

adequate funds for her program would no 

longer be available. It is further alleged 

that the facts that would alert a reasonable 

person to the unlawful discrimination only 

became known to the plaintiff more than six 

months after the discriminatory act. . . . 

In these circumstances we apply the familiar 

equitable modification to statutes of 

limitation: the statute does not begin to 

run until the facts which would support a 

cause of action are apparent or should be 

apparent to a person with a reasonably 

prudent regard for his [or her] rights. 

Id. at 930. 

 Thus, 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. The appropriateness of this rule, as a matter of 

equity, can be illustrated by reference to Cada. 
 The court in Cada distinguished "equitable estoppel" 

and "equitable tolling."7 According to Cada, equitable estoppel 

arises where the defendant has attempted to mislead the plaintiff 

and thus prevent the plaintiff from suing on time. Id. at 452. 

Thus, according to Cada, equitable estoppel requires a showing of 

inequitable conduct on the part of the defendant. In contrast, 

for equitable tolling, all the plaintiff need show is that he or 

she could not, by the exercise of reasonable diligence, have 

discovered essential information bearing on his or her claim. 

Id. With this contrast in mind, the court went on to discuss the 

remedy each doctrine affords: 

 [I]f fraudulent concealment [i.e., equitable 

estoppel] is shown[,] the court must subtract 

from the period of limitations the entire 

period in which the tolling condition is in 

effect, for otherwise the defendant would 

obtain a benefit from his [or her] 

inequitable conduct[. However,] it is not at 

all clear that equitable tolling -- a 

doctrine that adjusts the rights of two 

innocent parties -- is as generous. . . We 

do not think equitable tolling should bring 

about an automatic extension of the statute 

of limitations by the length of the tolling 

period. . . It is, after all, an equitable 

doctrine. It gives the plaintiff extra time 

if he [or she] needs it. If [the plaintiff] 

doesn't need it there is no basis for 

depriving the defendant of the protection of 

the statute of limitations. Statutes of 

 

7. The doctrine which the Seventh Circuit describes as 

"equitable estoppel" appears to be the same, in all important 

respects, as our "equitable tolling" insofar as our "equitable 

tolling" excuses a late filing where such tardiness results from 

active deception on the part of the defendant. We note that what 

the Seventh Circuit in Cada calls "equitable tolling" is not what 

we are describing when we use and apply the same term in the 

context of employer deception. 
limitations are not arbitrary obstacles to 

the vindication of just claims . . . they 

protect important social interests in 

certainty, accuracy, and repose. When we are 

speaking not of equitable estoppel but of 

equitable tolling, we are (to repeat) dealing 

with two innocent parties and in these 

circumstances the negligence of the party 

invoking the doctrine can tip the balance 

against its application. . . . 

Id. at 452-53. 

 We agree that where the plaintiff's failure to file 

timely cannot be attributed to any inequitable conduct on the 

part of the defendant, an automatic extension of the statute of 

limitations by the length of the tolling period does not make 

sense as a matter of equity. However, such an automatic 

extension makes eminent equitable sense where the defendant has, 

by deceptive conduct, caused the plaintiff's untimeliness. 

C. 

 By way of summary, the discovery rule and the equitable 

tolling doctrine are similar in one respect and different in 

another. The doctrines are similar in that each requires a level 

of diligence on the part of the plaintiff; that is, each requires 

the plaintiff to take reasonable measures to uncover the 

existence of injury. See Keystone Insurance, 863 F.2d at 1127 

(making this point with regard to the discovery rule); Reeb, 516 

F.2d at 930 (making this point with regard to equitable tolling). 

The plaintiff who fails to exercise this reasonable diligence may 

lose the benefit of either doctrine. The two doctrines differ, 

however, with respect to the type of knowledge or cognizance that 

triggers their respective applications. The discovery rule keys 
on a plaintiff's cognizance, or imputed cognizance, of actual 

injury. See Merrill, 806 F.2d at 604-05. Equitable tolling, on 

the other hand, keys on a plaintiff's cognizance, or imputed 

cognizance, of the facts supporting the plaintiff's cause of 

action.8 Underlying this difference between the discovery rule 

and equitable tolling is the more fundamental difference in 

purpose between the two rules. The purpose of the discovery rule 

is to determine the accrual date of a claim, for ultimate 

purposes of determining, as a legal matter, when the statute of 

limitations begins to run. Equitable tolling, at least as the 

doctrine might apply in Oshiver's case, presumes claim accrual. 

Equitable tolling steps in to toll, or stop, the running of the 

statute of limitations in light of established equitable 

considerations. 

III. 

 We now apply the discovery rule and the doctrine of 

equitable tolling to Oshiver's claims. 

 

8. Of course, cognizance of the facts supporting the 

plaintiff's cause of action presumes cognizance of actual injury. 
A. 

 With regard to Oshiver's claim of discriminatory 

discharge, we have no difficulty in concluding that for purposes 

of the discovery rule, Oshiver "discovered" the injury on April 

10, 1990, the very date defendant law firm informed her of her 

discharge. Simply put, at the moment the law firm conveyed her 

dismissal to her, Oshiver 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 Oshiver may have been 

deceived regarding the underlying motive behind her discharge is 

irrelevant for purposes of the discovery rule. See Keystone 

Insurance, 863 F.2d at 1127. 

 Having discovered the injury associated with her 

alleged wrongful discharge on April 10, 1990, it is clear that 

the discovery rule offers Oshiver no relief in relation to the 

timeliness of the filing of her discriminatory discharge claim. 

This filing occurred on November 8, 1991. Oshiver's wrongful 

discharge action accrued on April 10, 1990. Oshiver waited some 

440 days before filing her administrative complaint, or too long 

by some 140 days.9

 

9. An argument can be made that since Oshiver had been hired as 

a temporary employee, she did not know, and could not have been 

expected to know, that she had been injured until she learned, 

later on, that the law firm had hired another hourly temporary 

employee a few weeks after her discharge. However, this argument 

overlooks the fact that the discovery rule hinges upon actual, as 

opposed to legal, injury. That Oshiver may not have known on 

April 10, 1990, that her discharge constituted an actionable 

legal wrong does not matter for discovery rule purposes. 
 We next address whether Oshiver's discriminatory 

failure to hire claim is saved by the operation of the discovery 

rule. In so doing, it bears repeating that the discovery rule 

requires the plaintiff to exercise reasonable diligence in the 

ascertainment of injury. We cannot say that Oshiver exercised 

the reasonable diligence required by the discovery rule in 

connection with her discovery of the firm's hiring of the male 

associate. This hiring occurred sometime in May of 1991. Had 

Oshiver exercised reasonable diligence -- had she, for example, 

telephoned the law firm periodically to monitor the status of her 

own outstanding associate application, or checked with the firm 

in May of 1991 after learning that it had hired an hourly 

attorney shortly after discharging her -- she would almost 

certainly have discovered the associate hiring much earlier. 

Thus, the discovery rule affords Oshiver no relief in connection 

with the timing of the filing of her failure to hire claim. 

B. 

 We now apply the doctrine of equitable tolling to 

Oshiver's discriminatory discharge claim.10 

 

10. We do not apply this doctrine to Oshiver's failure to hire 

claim, however, because nowhere in the complaint does Oshiver 

allege that the law firm misled her, actively or otherwise, with 

respect to this claim. Accordingly, there is no basis for the 

application of the equitable tolling doctrine. Oshiver's 

complaint in this regard merely alleges that the firm told her 

that she would be considered for an associate position if one 

became available, but did not contact her upon the opening of an 

associate position. Thus, at most, Oshiver alleges that the firm 

concealed from her the fact that an associate opening arose. To 

be activated, equitable tolling requires active misleading on the 

part of the defendant. The type of concealment Oshiver alleges 
 Oshiver's complaint alleges that at the time of her 

dismissal, the firm offered the explanation that it had no work 

for her to perform. Oshiver also alleges in her complaint that 

she learned in May of 1991 that she had been replaced by a male, 

and that "apparently there was work to do at the firm." (Joint 

Appendix at 20a). The district court concluded that the 

allegations in Oshiver's complaint were insufficient to invoke 

the doctrine of equitable tolling. However, this issue was 

raised in the context of a motion to dismiss pursuant to Fed. R. 

Civ. P. 12(b)(6). The district court was to accept all 

allegations of fact as true and draw all reasonable inferences in 

Oshiver's favor. Middle Bucks Area Vocational Technical School, 

972 F.2d at 1367. Therefore, all that was required of Oshiver at 

this stage was that she plead the applicability of the doctrine. 

A fair reading of Oshiver's complaint is that she claims that the 

firm told her there was no work when "apparently there was 

. . .," a fact which she learned for the first time much later. 

Thus, Oshiver's allegations essentially charge that (1) the firm 

actively misled her regarding the reason for her discharge, and 

(2) the critical fact that would have alerted a reasonable person 

to the alleged unlawful discrimination only became known to 

Oshiver on May 21, 1991. We find that these allegations, taken 

as true and giving Oshiver the benefit of all reasonable 

(..continued) 

is, in our view, qualitatively different from taking affirmative 

steps to mislead. 
inferences, are sufficient to activate the doctrine of equitable 

tolling. See Reeb, 516 F.2d at 930. 

 We offer no view as to whether Oshiver will derive 

ultimate benefit from the equitable tolling doctrine in relation 

to her wrongful discharge claim. The factual questions remain 

(1) whether the firm effectively misled Oshiver with respect to 

her discriminatory discharge cause of action; (2) if so, whether 

a person such as Oshiver, with a reasonably prudent regard for 

her rights, would have been misled by the firm's communication; 

and (3) if so, whether a person in Oshiver's position with a 

reasonably prudent regard for her rights would have learned of 

the firm's deception sooner. These factual inquiries must be 

undertaken before a proper resolution of the equitable tolling 

issue can reached. 

 We wish to make clear, however, that the purpose of and 

the remedy afforded by the equitable tolling doctrine, at least 

insofar as it applies in cases involving defendant employer 

deception, are understood properly only in light of the equitable 

principle which underlies the doctrine, namely, that one should 

not be permitted to benefit from his or her own wrongdoing. See

Reeb, 516 F.2d at 930 ("`Deeply rooted in our jurisprudence, this 

principle has been applied in many diverse classes of cases by 

both law and equity courts and has frequently been employed to 

bar inequitable reliance on statutes of limitations.'") (quoting

Glus v. Brooklyn Eastern District Terminal, 1959, 359 U.S. 231, 

232-33 (1959)); Miklavic v. USAir, Inc., 21 F.3d at 557. Our 

conclusion that the equitable tolling doctrine tolls the initial 
running of the statutory period until the plaintiff knows, or 

should reasonably be expected to know, the concealed facts 

supporting the cause of action flows directly, and naturally, 

from this fundamental equitable principle. Unless the plaintiff 

is then given the full statutory period in which to file his or 

her charge of discrimination, starting from the moment he or she 

acquires or constructively acquires such knowledge, the 

defendant's inequitable conduct will have served to shorten the 

limitations period, and thus benefit the defendant. This is 

precisely the result the equitable tolling doctrine was created 

to avoid. 

IV. 

 For the reasons stated above, we will affirm the 

district court's dismissal of Oshiver's discriminatory failure to 

hire claim pursuant to Federal Rules of Civil Procedure 12(b)(1) 

and (6). We will reverse the district court's dismissal of 

Oshiver's discriminatory discharge claim and remand for 

proceedings consistent with this opinion. 

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