Blog Post

Smith v. Potter, No. 08-10393 (11th Cir. Feb. 3, 2009)

Posted by: Paul Mollica
February 03, 2009
Topic: Daily Developments in EEO Law

Another good decision from the Eleventh Circuit, reversing summary judgment in an ADEA case on limitations grounds, is (regrettably) released under the "Do Not Publish" banner.

Smith v. Potter, No. 08-10393 (11th Cir. Feb. 3, 2009): Equitable tolling is one backstop to the short 180/300 day limitations period for filing an EEOC charge -- and the absurdly-brief 45 days to consult with an EEO counsellor, if you're a federal employee. Today, the Eleventh Circuit holds that a Postal Service employee who waited more than 45 days after she learned that she would not be promoted to contact her agency's counsellor may nonetheless be rescued by tolling.

As the Eleventh Circuit applies it, the tolling rule applies when the employee lacks information necessary to state a claim under the appropriate act. So here:

"This court has explained that equitable tolling is appropriate until the point at which the plaintiff has 'knowledge of facts sufficient to support a prima facie case of age discrimination.' To establish a prima facie case of age discrimination under the ADEA, the plaintiff must demonstrate: '(1) that she was a member of the protected group of persons between the ages of forty and seventy; (2) that she was subject to adverse employment action; (3) that a substantially younger person filled the position that she sought or from which she was discharged; and (4) that she was qualified to do the job for which she was rejected.'

"The magistrate judge concluded that after Smith spoke to members of the recommendation committee in March 2004 and was told that her rejection was based on the fact that she was never detailed to the CRC position, 'Smith knew or reasonably should have known that she had been discriminated against, since she knew that White was twenty years younger and White had been detailed to the Customer Relations Coordinator position for months leading up to the formal posting of the position.' This, however, is insufficient to meet the third requirement for a prima facie case of age discrimination because a 'mere suspicion of age discrimination, unsupported by personal knowledge,' is not enough to establish a prima facie under the ADEA. The fact that White was substantially younger and had been detailed to the position did not show that 'a substantially younger person filled the position that she sought.'" [Citations omitted.]

Now to my ears, this sounds like the discovery rule (e.g., when the employee knew or should have known that there was a violation), rather than equitable tolling, but were not looking a gift horse in the mouth on this website, no how!