                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 17-2094
                                      _____________

                   HAROLD P. KOLLER; HUNTINGDON VALLEY
                       EYE CARE CONSULTANTS, LTD.,
                                             Appellants

                                             v.

                         ABINGTON MEMORIAL HOSPITAL
                                ______________

                        On Appeal from the United States District
                         for the Eastern District of Pennsylvania
                               (E.D. Pa. No. 2-15-cv-03234)
                        District Judge: Honorable Cynthia M. Rufe
                                     ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  January 22, 2018
                                  ______________

  Before: GREENAWAY, JR., KRAUSE, Circuit Judges, and JONES, District Judge. *

                             (Opinion Filed: March 19, 2018)

                                     ______________

                                       OPINION **
                                     ______________



       *
         The Honorable John E. Jones III, United States District Judge for the Middle
District of Pennsylvania, sitting by designation.
       **
          This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.

       In this appeal, the sole issue presented is whether the age discrimination claims

brought by Appellants Harold Koller and Huntingdon Valley Eye Care Consultants, Ltd.

(“HVECC”) are subject to equitable tolling. We conclude that tolling is inappropriate

because Appellants’ late filing was not caused by any deception on the part of Appellee

Abington Memorial Hospital (“AMH” or “the Hospital”). Accordingly, we will affirm

the District Court’s order granting summary judgment in favor of AMH.

                                   I. BACKGROUND

       Koller is a pediatric ophthalmologist and the owner and President of HVECC. In

2008, Koller entered into an agreement with AMH, under which he was to perform on-

site eye examinations on premature infants born at the Hospital. After Koller hired

Cynthia Alley, another ophthalmologist, to provide services to HVECC patients, he and

AMH modified their arrangement. Koller assigned his rights and obligations under the

agreement to HVECC, so that both he and Alley could examine patients at the Hospital.

       The agreement permitted either party to terminate the relationship at any time

upon providing 180 days’ notice. On March 21, 2013, AMH notified Koller and HVECC

by letter that it intended to terminate the agreement, effective September 20, 2013, which

the parties later agreed to extend to September 30. After receiving the letter, Koller

spoke on the phone with Steven Shapiro, the Chair of the Pediatrics Department at AMH,

on March 25, 2013. According to Koller’s handwritten notes about that phone call,

Shapiro informed him that the Hospital decided to make a change because it needed to
                                             2
ensure “continuity of care for the next 15-20 years.” App. 431. Koller noted that Shapiro

referred to his age, which at the time was seventy-five. Koller responded that Alley, his

associate at HVECC, was only forty-one, and that he was looking at hiring a number of

other younger doctors into the practice. Shapiro did not change his mind, though, and the

call ended. Reflecting on the conversation, Koller later testified that “the only thing that

one could absolutely conclude is that age was absolutely on the top of [Shapiro’s] list [of]

. . . reasons for severing the contract.” App. 120.

       Nonetheless, Koller and HVECC took no action against AMH until nearly a year

later. By then, Koller had learned that AMH had replaced HVECC by reaching an

agreement directly with Alley, Koller’s former associate, which took effect October 1,

2013. On March 18, 2014, Koller and HVECC filed an age discrimination complaint

against the Hospital with the Pennsylvania Human Relations Commission (“PHRC”).

After the PHRC complaint was dismissed, Koller and HVECC initiated this lawsuit on

June 9, 2015, raising claims under the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. §§ 621–634 (2012), and Pennsylvania Human Relations Act

(“PHRA”), 43 Pa. Stat. and Cons. Stat. Ann. §§ 951–963 (West 2009).

       Following the close of discovery, AMH filed a motion for summary judgment,

which the District Court granted, concluding that Koller and HVECC’s claims were time-

barred by the applicable statutes of limitations and not subject to equitable tolling. Koller

and HVECC then filed this appeal.


                                              3
                  II. JURISDICTION & STANDARD OF REVIEW

      The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have

jurisdiction pursuant to 28 U.S.C. § 1291.

      We exercise plenary review of a district court’s grant of summary judgment.

Karns v. Shanahan, 879 F.3d 504, 512 (3d Cir. 2018). Thus, we will affirm “if the

movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[W]e ‘review the record

as a whole and in the light most favorable to the nonmovant, drawing reasonable

inferences in its favor.’” Valspar Corp. v. E.I. Du Pont De Nemours & Co., 873 F.3d

185, 192 (3d Cir. 2017) (quoting In re Chocolate Confectionary Antitrust Litig., 801 F.3d

383, 396 (3d Cir. 2015)).

                                   III. DISCUSSION

      On appeal, Koller and HVECC concede that their claims are time-barred unless

they are subject to equitable tolling. 1 “The ADEA’s timely exhaustion requirement is a



      1
         Under the PHRA, Koller and HVECC were required to file a complaint with the
PHRC within 180 days of the allegedly discriminatory conduct. 43 Pa Stat. and Cons.
Stat. Ann. § 959(h). The ADEA, meanwhile, required that they file a charge of
discrimination with the Equal Employment Opportunity Commission within 300 days of
the allegedly discriminatory act. See 29 U.S.C. § 626(d)(1)(B). Here, while HVECC’s
contract was not officially terminated until September 30, 2013, for limitations purposes
the allegedly discriminatory act occurred on March 25, 2013, when Koller received
AMH’s notice of termination. See Watson v. Eastman Kodak Co., 235 F.3d 851, 856 (3d
Cir. 2000) (“As a matter of law, notice of an ‘operative decision’ of termination is not
equivocal merely because it was ‘given . . . in advance of a designated date on which
employment terminated.’” (alteration in original) (quoting Chardon v. Fernandez, 454
                                              4
non-jurisdictional prerequisite that, like a statute of limitations, is subject to equitable

tolling.” Ruehl v. Viacom, Inc., 500 F.3d 375, 384 (3d Cir. 2007). “Equitable tolling

stops the statute of limitations from running when [a discrimination] charge’s accrual

date has already passed.” Id. It is a remedy, however, “available only sparingly and in

extraordinary situations.” Robinson v. Dalton, 107 F.3d 1018, 1023 (3d Cir. 1997).

       Here, Koller and HVECC contend that equitable tolling should apply because

AMH actively misled them regarding the reason for their discharge. See Oshiver v.

Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994). We have held

that when a plaintiff has been actively misled about the reason for their termination, “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 actions either bec[a]me

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.” Id. at 1389. Koller and

HVECC argue that the facts supporting their claims did not become apparent until

October 1, 2013, when Koller learned that AMH had replaced HVECC with the younger

Alley. For equitable tolling to apply, however, it is not enough for Koller and HVECC to

show that AMH misled them. They must also show that AMH’s “deception caused

[their] non-compliance with the limitations provision.” Id. at 1387.

       Koller and HVECC are unable to make such a showing in this case. Indeed,


U.S. 6, 8 (1981) (per curiam))). Koller and HVECC did not file a charge of
discrimination until March 18, 2014, 358 days later.
                                            5
viewing the record as a whole in the light most favorable to Koller and HVECC, we

conclude that, even if they could show that AMH deceived them, they cannot prove that

AMH’s deception caused their late filing. Crucially, Koller’s contemporaneous notes

from his March 25, 2013 phone call with Shapiro reveal that Shapiro referred to Koller’s

age and stressed that the Hospital needed to ensure “continuity of care” for the next

fifteen to twenty years. App. 431. Those notes also indicate that Koller understood

Shapiro’s concerns to be about his age: Koller wrote that his associate Alley was only

forty-one at the time, and he mentioned that he was planning to get younger

ophthalmologists into the practice. At a later deposition, Koller stated that, based on the

March 25 phone call, “the only thing that one could absolutely conclude is that age was

absolutely on the top of [Shapiro’s] list [of] . . . reasons for severing the contract.” App.

120.

       Thus, by his own admission, Koller believed that he had been terminated due to

his age on March 25, 2013. And the key facts upon which his and HVECC’s

discrimination claims were predicated were known to him: he was seventy-five years old

at the time, Shapiro had explicitly referenced his age when justifying the termination of

the agreement, and Shapiro had repeatedly stressed that the Hospital needed someone

who could provide continuity of care for the next fifteen to twenty years. Koller and

HVECC are unable to explain why they were unable to pursue their claims based on the

information that they already had. See Ruehl, 500 F.3d at 385 (emphasizing plaintiff’s

inability to explain how he was unable to pursue a claim based on the many facts
                                              6
available to him at the time of discharge).

       This case is therefore distinguishable from Oshiver, where we held that the

plaintiff might be entitled to equitable tolling because of the defendants’ deception. 38

F.3d at 1392. There, the plaintiff alleged that her employer had said she was being

dismissed because there was no work for her to perform. Id. at 1391. Importantly, the

plaintiff had no reason to suspect a discriminatory motive until over a year after her

dismissal, when she learned for the first time that a male had been hired to replace her

shortly after she was fired. Id. at 1384, 1391–92. Under those circumstances, we held

that the plaintiff’s factual allegations were sufficient to survive a motion to dismiss and

remanded for further factfinding regarding the equitable tolling issue. Id. at 1392.

       By contrast, here, Koller strongly suspected a discriminatory motive as soon as

AMH terminated the agreement. Even viewing the record in the light most favorable to

Koller and HVECC, the significance of AMH’s hiring Alley was negligible, because it

merely corroborated what Koller had already believed for several months: that he had

been terminated due to his age. Under these circumstances, where Koller suspected a

discriminatory motive within the limitations period and the facts supporting that

suspicion were known to him, our precedent makes clear that equitable tolling is

unwarranted. 2 See Ruehl, 500 F.3d at 385 (holding equitable tolling inappropriate when


       2
        Koller and HVECC’s reliance on Jones v. Dillard’s, Inc., 331 F.3d 1259 (11th
Cir. 2003), Sturniolo v. Sheaffer, Eaton, Inc., 15 F.3d 1023 (11th Cir. 1994), and Reeb v.
Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975), is misplaced, because
even under the test articulated in those cases, Koller and HVECC would not be entitled to
                                              7
plaintiff was aware of facts that supported his cause of action at the time he was

terminated); Hart v. J. T. Baker Chem. Co., 598 F.2d 829, 834 (3d Cir. 1979) (holding

equitable tolling inappropriate when, “by her own admission,” plaintiff suspected her

discharge was related to sex at the time she was fired).

                                   IV. CONCLUSION

       For the reasons set forth above, we will affirm the District Court’s order granting

summary judgment in favor of AMH.




equitable tolling. Under that test, the limitations period does not begin to run “until the
facts which would support a cause of action are apparent to a person with a reasonably
prudent regard for his [or her] rights.” Jones, 331 F.3d at 1264 (alteration in original)
(quoting Reeb, 516 F.2d at 930). Importantly, however, “[i]t is not necessary for a
plaintiff to know all the facts that support his claim in order to file a claim.” Sturniolo,
15 F.3d at 1025. As explained above, the vast majority of the facts supporting Koller and
HVECC’s claims were known to Koller at the time of discharge. Thus, even if we were
to follow Jones, Sturniolo, and Reeb—which of course are not binding on this Court—the
limitations period here would have begun to run on March 25, 2013, and the claims
would now be time-barred.
                                               8
