                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             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Precedential or Non-Precedential: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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                  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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