United States District Court, Southern District of New York
July 30, 1999
WILLIAM PAULING, PLAINTIFF,
SECRETARY OF THE DEPARTMENT OF INTERIOR, DEFENDANT.
The opinion of the court was delivered by: Cote, District Judge.
Upon the Court's request, the parties have submitted letter
briefs addressing whether it is for the Court or a jury to decide
whether either equitable tolling or equitable estoppel should
apply to allow plaintiff William Pauling's ("Pauling") case to
proceed, despite his failure to contact an EEO counselor within
45 days of the alleged discrimination. For the reasons set forth
herein, the Court will determine the application of tolling or
estoppel to this case and the limited facts necessary to make
such a determination.
It is undisputed that Pauling did not initiate contact with an
EEO officer until March 28, 1994, approximately five months after
he had left his job. The parties agree, moreover, that an
employee must bring his complaint to the attention of an EEO
officer within 45 days of the alleged discriminatory act, unless
the individual shows that he was not notified or was unaware of
the time limits. 29 C.F.R. § 1614.105(a)(1), (2).
In two decisions dated April 14 and July 15, 1997, this Court
granted summary judgment against Pauling based on his failure to
comply with the timeliness provisions of the EEOC regulations. In
an Opinion dated November 13, 1998, reviewing this Court's grant
of summary judgment to defendant, the Second Circuit Court of
Appeals held that Pauling had raised an issue of material fact
"in support of his contention that he was not placed on notice —
constructive or otherwise — of the 45-day limitations period" and
remanded for further proceedings. Pauling v. Sec'y of Dep't of
Interior, 160 F.3d 133, 137 (2d Cir. 1998). As an initial
matter, the Court must determine whether the principles of
tolling and estoppel embodied in the EEOC regulations must be
applied, and any disputed facts surrounding their application
found, by this Court or by a jury.
To resolve this question, the Court confronts the apparent
clash of two established principles of law in this Circuit.
First, where a statute of limitations operates as an affirmative
defense, "issues of fact as to the application of that defense
must be submitted to the jury." Katz v. Goodyear Tire and Rubber
Co., 737 F.2d 238, 242 n. 2 (2d Cir. 1984). See also Maslan v.
American Airlines, Inc., 885 F. Supp. 90, 93 (S.D.N.Y. 1995).
This is relevant because the timeliness requirement
in the EEOC regulations has been likened frequently to a statute
of limitations. See, e.g., Downey v. Runyon, 160 F.3d 139, 145
(2d Cir. 1998) (citing cases). At the same time, however,
application of the equitable doctrines at issue — tolling and
estoppel — remains within the province of the Court. See Majid
v. Fielitz, 700 F. Supp. 704, 707 (S.D.N.Y. 1988) (citing
Dillman v. Combustion Eng'g, Inc., 784 F.2d 57, 60 (2d Cir.
For several reasons, it is better for the Court to address the
issues of tolling and estoppel in this case. Most important to
this conclusion is the parties' agreement that Pauling failed to
meet the timeliness requirement, or, in the parlance of statutes
of limitations, that the statute had run. In other words, there
is no legal or factual dispute concerning the application of the
statute of limitations. The factual disputes to be resolved
relate only to whether the equitable doctrines at issue should be
applied to render Pauling's failure to act sooner harmless to his
case. Specifically, Pauling identifies two factual areas that
must be resolved to determine the appropriateness of tolling: (1)
Where were the notices advising of the time limitation posted?;
and (2) Did Pauling have access to those places? As there are no
factual disputes concerning the statute of limitations having
run, resolution of the issues of tolling and estoppel in this
case does not require the Court to tread upon the jury's
prerogative to consider those facts surrounding application of a
statute of limitations. Instead, the Court need only find those
facts necessary to determine the appropriate application of
tolling or estoppel to this case.
In addition, the facts surrounding the question of tolling or
estoppel are entirely distinct from those facts underlying
Pauling's legal claims. Accordingly, there is no danger of the
Court reaching any issues that will be squarely before the jury
if the case proceeds to trial. This fact distinguishes this case
from those few cases in which courts have placed the issues of
equitable tolling or estoppel in the hands of a jury based in
part upon the overlap of factual issues between the equitable
tolling/estoppel question and the parties' underlying claims.
See Ott v. Midland-Ross Corp., 600 F.2d 24, 31 (6th Cir. 1979);
Vasconcellos v. EG & G, Inc., 131 F.R.D. 371, 372 (D.Mass.
1990). Where the parties' legal claims do not share common issues
of fact with the equitable claims or defenses, the Court
appropriately decides the equitable claims in full. See, e.g.,
Granite State Insurance Co. v. Smart Modular Technologies, Inc.,
76 F.3d 1023, 1026-27 (9th Cir. 1996).
Finally, judicial economy and efficiency in resolving this
matter will also be served by the Court's handling of these
issues, for their resolution will either streamline the legal and
factual issues for trial or render a trial altogether
unnecessary. For these reasons, the Court shall determine the
facts surrounding the application of tolling or estoppel in this
For the reasons stated, the Court shall address the question of
tolling and estoppel.
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