Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 04-2122

PETER L. DUFFY,

Plaintiff, Appellant,

v.

GORDON R. ENGLAND, SECRETARY OF THE NAVY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

 Torruella, Circuit Judge,

Stahl, Senior Circuit Judge,

and Howard, Circuit Judge.

Peter L. Duffy on brief pro se.

Michael J. Sullivan, United States Attorney, and Barbara Healy

Smith, Assistant U.S. Attorney, on Memorandum in Support of Motion

for Summary Disposition.

March 11, 2005
Per Curiam. Peter L. Duffy, pro se, appeals from the

district court's dismissal of his complaint brought under the Age

Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, on

statute of limitations grounds. We have held that in cases where,

as here, an ADEA claimant elects to bypass the administrative

process and goes directly to federal court, the applicable

limitations period is two years from the date of the allegedly

discriminatory act or practice. Rossiter v. Potter, 357 F.3d 26,

34 (1st Cir. 2004). 

Duffy's claims are based on his removal from his position

as Department Head and reassignment to a newly-created position

which was "meaningless." He also maintains that he was improperly

denied the opportunity to compete for an advertised higher gradelevel position. Duffy asserts that the decision to replace and

reassign him was made on June 8, 2000, that defendant "dissuaded"

him from applying for the advertised position on June 15, 2000, and

that the effective date of his removal, replacement and

reassignment was January 7, 2001. Duffy did not file his complaint

until March 1, 2004, well over two years after the acts of which he

complains. However, he argues that his claim did not accrue until

December 9, 2003, when he discovered a transcript of an interview

conducted years earlier which indicated that age discrimination was

the impetus

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for the challenged employment decisions. This argument is

unavailing. 

"Under federal law the accrual of an employment

discrimination claim 'commences when a plaintiff knows, or has

reason to know, of the discriminatory act,'" Melendez-Arroyo v.

Cutler-Hammer de P.R. Co., 273 F.3d 30, 37 (1st Cir. 2001) (quoting

Morris v. Gov't Dev. Bank of Puerto Rico, 27 F.3d 746, 750 (1st

Cir. 1994)), not when he or she first learns that the act was based

on discriminatory factors or motives. Chapman v. Homco, Inc., 886

F.2d 756, 758 (5th Cir. 1989); see Thelan v. Marc's Big Boy Corp.,

64 F.3d 264, 267 (7th Cir. 1995) ("A plaintiff's action accrues

when he discovers that he has been injured, not when he determines

that the injury was unlawful"); Pacheco v. Rice, 966 F.2d 904, 906

(1st Cir. 1992) (applying same rule in Title VII case). "[T]he

plaintiff need not know all the facts that support his claim in

order for countdown to commence." Morris, 27 F.3d at 750; see

Pacheco, 966 F.2d at 907 ("It is to be expected that some relevant

facts will come to light after the date of an employee's

termination--one purpose of filing an administrative complaint is

to uncover them").

Further, although Duffy attempted to argue in the

district court that the statute of limitations should be equitably

tolled, he appears to have abandoned that argument on appeal and he

makes no allegation that defendant affirmatively misled him or took
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any action that lulled him into inaction. There is therefore no

basis for equitable tolling. See Morris, 27 F.3d at 750 (Equitable

tolling requires proof that employee "was unaware of the employer's

discriminatory animus" and "that the employer actively misled him,

to his detriment"). 

Affirmed. See 1st Cir. R. 27(c).