Peter L. Duffy v. Gordon R. England, Secretary of the Navy

Not for Publication in West's Federal Reporter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

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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 grade-
level 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).

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