Application of equitable and minority tolling to administrative complaints before the PHRC

Nicole B. v. Sch. Dist. of Phila., 2018 WL 6596377 (Pa. Cmwlth. 2018) (unreported), allocatur granted June 25, 2019, appeal docket 16 EAP 2019

The Supreme Court granted allocatur to review Commonwealth Court’s determination that the “minority tolling” provision at 42 Pa. C.S. § 5533(b)(i) does not apply to claims under the Pennsylvania Human Relations Act (PHRA), and that  the equitable tolling provisions in Section 962(e) of the PHRA do not apply to toll a minor’s claim filed beyond the 180 day deadline for filing a complaint with the Pennsylvania Human Relations Commission.

Commonwealth Court summarized the relevant facts as follows:

On October 25, 2011, [Nicole B’s] then-eight-year-old son, N.B., was sexually assaulted by three male classmates in a bathroom at William C. Bryant Elementary School (Bryant Elementary) in Philadelphia.  At that time, N.B. was a fourth-grade student at Bryant Elementary.  According to [Nicole B.], the sexual assault was the culmination of two months of pervasive, and often violent, physical and verbal harassment endured by N.B. at school.  [Nicole B.] also alleged that before the sexual assault, both she and N.B. had reported the harassment to N.B.’s teacher and to administrators at Bryant Elementary, who did nothing to prevent or stop the harassing conduct.

On January 7, 2014, [Nicole B.], in her individual capacity and on N.B.’s behalf, filed an Administrative Complaint with the Pennsylvania Human Relations Commission (Commission) against the School District of Philadelphia, asserting claims of gender and race discrimination under the Pennsylvania Human Relations Act (PHRA), Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§ 951-963.  On April 11, 2014, [Nicole B.] filed a second Administrative Complaint with the Commission, asserting the same discrimination claims and adding Mr. Johnson, N.B.’s fourth-grade teacher at the time of the allegations, and Ms. Pearson, Bryant Elementary’s then principal, as defendants. The crux of [Nicole B’s] allegations was that School District failed to adequately respond to [her] and N.B.’s complaints of sexual and racial harassment and to protect N.B. from such harassment.  [Nicole B.] alleged that School District violated Section 5(i)(1) of the PHRA, 43 P.S. § 955(i)(1), which prohibits a public school and its employees from “either directly or indirectly” discriminating against an individual based on gender or race.

The Commission rejected both Administrative Complaints as untimely.  Under Section 9(h) of the PHRA, 43 P.S. § 959(h), [Nicole B.] was required to file her Administrative Complaint with the Commission within 180 days of the last alleged incident of discrimination.  However, [she] did not file her Administrative Complaint until two years and two months after the final incident of discrimination against N.B.

Slip. Op. at 1-3 (footnotes omitted)

Nicole B. filed a complaint against the school district in the court of common pleas, alleging gender and race discrimination under the PHRA as well as common law tort claims. Common pleas denied a motion for judgment on the pleadings based upon the untimely filing with the Commission. Following several amended complaints and a six-day trial, common pleas granted the School District’s motion for compulsory nonsuit and dismissed Nicole B.’s Third Amended Complaint, concluding the untimely filing of the administrative complaints with the Commission deprived it of jurisdiction.

Common pleas also concluded that 42 Pa. C.S. § 5533(b)(1), commonly known as Pennsylvania’s Minority Tolling Statute, did not apply to Nicole B.’s Administrative Complaint, and further rejected her assertion that equitable tolling should apply.  Nicole B. appealed common pleas’ decision to Commonwealth Court.

Following a discussion reaffirming the requirement that a complainant exhaust their administrative remedies by timely filing a complaint with the Commission, Commonwealth Court analyzed the tolling issues as follows:

Here, it is undisputed that [Nicole B.] filed her Administrative Complaint with the Commission two years and two months after the last alleged act of discrimination against N.B., well beyond the PHRA’s 180-day time limit.  Recognizing that her Administrative Complaint was untimely filed, [she] contends that the 180-day period was tolled by N.B.’s status as a minor.  Specifically, [she] advocates the application of two tolling doctrines: (1) equitable tolling under Section 12(e) of the PHRA and (2) the Minority Tolling Statute.  We conclude that neither doctrine applies in this case.

    1. Equitable Tolling

[Nicole B.] first argues that N.B.’s status as a minor tolled the 180-day period for filing an Administrative Complaint with the Commission because Section 12(e) of the PHRA expressly provides for “equitable tolling.”  Section 12(e) of the PHRA states that “[t]he time limits for filing under any complaint or other pleading under this act shall be subject to waiver, estoppel and equitable tolling.”  43 P.S. § 962(e) (emphasis added).  [She] maintains that, because the PHRA should be liberally construed, Section 12(e) of the PHRA “shields children from the PHRA’s limitation periods” and “it is fair to read ‘equitable tolling’ in [Section 12(e) of the PHRA] as protecting children.”  [Nicole B.’s] Br. at 33-35.  We disagree.

In interpreting the equitable tolling provision in Section 12(e) of the PHRA, this Court has specified that an administrative complaint filed beyond the 180-day window may be permitted “where the defendant actively misleads the plaintiff regarding the cause of action[,] where extraordinary circumstances prevent the plaintiff from asserting his rights[,] and where a plaintiff has asserted his rights in a timely fashion, but in the wrong forum.”  Uber v. Slippery Rock Univ. of Pa., 887 A.2d 362, 366 (Pa. Cmwlth. 2005); accord Quest Diagnostics Venture, LLC v. Com., 119 A.3d 406, 413 n.6 (Pa. Cmwlth. 2015).  Here, [Nicole B.] cites no evidence to support the application of any of these categories of equitable tolling recognized by our Court.

Instead, [she] contends that equitable tolling applies in this case merely because N.B. is a minor.  In effect, [she] asserts that N.B.’s minority status is an “extraordinary circumstance” justifying the application of equitable tolling to his PHRA claims.  However, [she] has cited no legal authority, nor have we found any, stating that the equitable tolling provision in Section 12(e) of the PHRA incorporates tolling on the basis of a person’s status as a minor.  Contrary to [her] contention on appeal, equitable tolling and minority tolling serve distinct purposes and are not interchangeable.

This distinction is demonstrated by two appellate decisions that pre-date the enactment of the Minority Tolling Statute.  In DeSantis v. Yaw, 434 A.2d 1273 (Pa. Super. 1981), a minor plaintiff filed an action in trespass and sought to toll the two-year limitations period under equitable principles.  The Superior Court noted that Pennsylvania law does not allow a minor to bring a cause of action on his own behalf; rather, a minor is dependent upon a parent or guardian to initiate a claim on his behalf.  Id. at 1276-77.  While it expressed concern that a minor may lose his ability to bring a cause of action based on his parents’ failure to timely file suit, the DeSantis Court concluded that it was bound by existing precedent and statutory authority linking the minor’s claims with the parents’ claims for statute of limitations purposes.  Id. at 1275.  Therefore, the Superior Court held that the minor plaintiff’s cause of action was barred by the two-year limitations period.  Id. at 1277. The DeSantis Court found no authority for waiving the statute of limitations based solely on the plaintiff’s minority status, absent specific statutory language imposing that right.  See id. at 1276 (stating that “that the ‘general rule’ provides no special protection to infants, absent a statutory provision”); accord Redenz by Redenz v. Rosenberg, 520 A.2d 883, 886 (Pa. Super. 1987) (holding that the plaintiff’s minority status was not a basis for applying equitable tolling to his negligence cause of action, which accrued before the Minority Tolling Statute’s effective date).  Thus, both DeSantis and Redenz support the conclusion that a plaintiff’s status as a minor does not toll the statute of limitations unless the legislature has expressly provided for minority tolling.

In contrast, the doctrine of equitable tolling protects any party who, “through no fault of [his] own, is unable to assert [his] rights in a timely manner.”  Daimler Chrysler Corp. v. Com., 885 A.2d 117, 119 n.5 (Pa. Cmwlth. 2005), aff’d per curiam, 927 A.2d 201 (Pa. 2007).  Historically, our courts have applied equitable tolling to causes of action alleging tortious conduct where the plaintiff, through no fault of his own, was unaware of, or unable to discover, his injury or its cause in a timely manner.  See, e.g., DEEK Inv., L.P. v. Murray, 157 A.3d 491, 497 (Pa. Super. 2017) (recognizing that equitable tolling may apply “[i]f through fraud or concealment the defendant causes the plaintiff to relax his or her vigilance or deviate from his or her right of inquiry”); Glover v. State Farm Mut. Auto. Ins. Co., 950 A.2d 335, 339 (Pa. Super. 2008) (noting that if the defendant “had actively misled” the plaintiff, “then the statute of limitations may be equitably tolled”).  Furthermore, “equitable tolling is permitted under the discovery rule only when, despite the exercise of due diligence, the injured party is unable to know of the injury or its cause.”  O’Kelly v. Dawson, 62 A.3d 414, 420 (Pa. Super. 2013) (emphasis added); see Dalrymple v. Brown, 701 A.2d 164, 167 (Pa. 1997) (recognizing that the discovery rule is a form of equitable tolling, which applies when the plaintiff does not know or cannot reasonably detect the existence of an injury within the prescribed limitations period).

In this case, [Nicole B.] alleged that she learned of the harassment, as well as N.B.’s injury, as early as November 4, 2011.  See Third Am. Compl., ¶ 70; [Nicole B.’s] Br. at 14.  Even under traditional equitable tolling principles, [she] would have been required to file her Administrative Complaint with the Commission within 180 days of that date, or by May 2, 2012.  However, [she] did not file her Administrative Complaint until almost two years later, in January 2014.  To date, [she] has failed to explain why she waited more than two years after learning of N.B.’s harassment to seek administrative relief with the Commission.  In fact, the Trial Court found that “if [Nicole B.] had any reason to explain why [her Administrative C]omplaint was filed three years late, these reasons should have been presented in [her] case in chief.  However, no such evidence was presented during [the] trial . . . .”  N.T., 8/7/17, at 51-52

Slip Op. at 10-13 (footnotes omitted) (emphasis in original).

Commonwealth Court on this basis concluded that the equitable tolling provision in Section 12(e) of the PHRA did not apply to Nicole B.’s Administrative Complaint. The court then turned to the applicability of the minority tolling statute, which it analyzed as follows:

    1. Minority Tolling Statute

Next, [Nicole B.] argues that the Minority Tolling Statute tolled the 180-day period for the filing of her Administrative Complaint.  The Minority Tolling Statute provides:

(i) If an individual entitled to bring a civil action is an unemancipated minor at the time the cause of action accrues, the period of minority shall not be deemed a portion of the time period within which the action must be commenced. Such person shall have the same time for commencing an action after attaining majority as is allowed to others by the provisions of this subchapter.

(ii) As used in this paragraph, the term “minor” shall mean any individual who has not yet attained 18 years of age.

42 Pa. C.S. § 5533(b)(1) (emphasis added).  School District contends that, by its plain language, the Minority Tolling Statute applies only to “civil actions” filed in court and not to administrative proceedings before the Commission.  We agree with School District.

In East v. Workers’ Compensation Appeal Board (USX Corp./Clairton), 828 A.2d 1016 (Pa. 2003), the Pennsylvania Supreme Court addressed this same question in the context of a workers’ compensation claim and held that the Minority Tolling Statute did not apply to administrative proceedings before a workers’ compensation judge.  The Supreme Court concluded that workers’ compensation proceedings are not “civil actions” and, therefore, are not encompassed by the Minority Tolling Statute.  Id. at 1021-23.  The East Court explained its reasoning as follows:

While Claimant is correct that the Legislature has failed to specifically define the term “civil action”, the term appears in more than five hundred separate legislative provisions.  While the parties have provided no assistance in the task, our examination of each of these has revealed persuasive evidence that the Legislature uses the term in a way that does not encompass proceedings before the workers’ compensation authorities.  Most revealing in this regard are those provisions in which “civil actions” are expressly distinguished from “administrative proceedings”, thereby demonstrating that the former excludes the latter. The majority of these statutory exemplars express the understanding that “civil actions” are those commenced and conducted in a court of record, involving traditional common law claims for damages or equitable relief governed by the Pennsylvania Rules of Civil Procedure.

Id. at 1021-22 (internal footnotes omitted) (emphasis added); see also 1 Pa. C.S. § 1991 (defining “action” as “any suit or proceeding in any court of this Commonwealth”); 42 Pa. C.S. § 102 (defining “action” for purposes of the Judicial Code as “any action at law or in equity”). Although East involved a workers’ compensation proceeding, rather than a proceeding before the Commission, the Supreme Court’s explanation of why such proceedings are distinct from “civil actions” does not foreclose East’s application to other categories of administrative proceedings.  For example, in V.S. v. Department of Public Welfare, 131 A.3d 523 (Pa. Cmwlth. 2015), this Court considered whether the Minority Tolling Statute applied to a minor’s untimely appeal from a decision of the Department of Public Welfare (Department).  The minor argued that the Department should have tolled the statutory appeal period until she turned 18.  After examining the Supreme Court’s decision in East, we affirmed the Department’s decision, concluding:  “It is evident that the General Assembly and the courts have deemed the Minor Tolling Statute applicable to matters in which a minor initiates a civil lawsuit in a court of record, and not those in which a minor is appealing from an administrative decision.”  Id. at 534 (emphasis added); see also Pittsburgh Water & Sewer Auth. v. Gladstone, 999 A.2d 1248, 1253 (Pa. Cmwlth. 2010) (concluding, in a case involving a statutory appeal from an administrative decision, that administrative proceedings and civil actions “have different substantive and procedural provisions and remedies, and that the tribunals vested with original jurisdiction and initial appellate jurisdiction are likewise distinct”).

Furthermore, the General Assembly’s decision to explicitly incorporate into the PHRA one form of tolling (equitable tolling) but not another (minority tolling) also supports the conclusion that the 180-day period is not tolled due to the complainant’s status as a minor.  See, e.g., L.S. ex rel. A.S. v. David Eschbach, Jr., Inc., 874 A.2d 1150, 1155-56 (Pa. 2005) (applying the statutory construction principle of expressio unius est exclusio alterius, which provides that “the express mention of one meaning in a statute implies the exclusion of other meanings”).  As School District correctly points out in its brief, the General Assembly amended the PHRA in 1991 to provide that administrative complaints under the PHRA “shall be subject to waiver, estoppel and equitable tolling.”  43 P.S. § 962(e) (emphasis added).  The General Assembly did not, however, expressly provide for minority tolling in the PHRA.  As explained earlier, these doctrines are not interchangeable.  We agree with School District that a plaintiff’s minority status tolls the statute of limitations only when the General Assembly has expressly provided for minority tolling, as it did for “civil actions” in the Minority Tolling Statute.

[Nicole B.] also argues that this Court should apply the Minority Tolling Statute to her PHRA claims because federal district courts have applied the Minority Tolling Statute to federal civil rights claims.  See, e.g., Gaudino v. Stroudsburg Area Sch. Dist., (M.D. Pa., No. 3:CV-12-2159, filed July 23, 2013), 2013 U.S. Dist. LEXIS 102382, at *14-16; Weidow v. Scranton Sch. Dist., (M.D. Pa., No. 3:08-CV-1978, filed August 19, 2009), 2009 U.S. Dist. LEXIS 73622, at *20-21; Seneway v. Canon McMillan Sch. Dist., 969 F. Supp. 325, 329-30 (W.D. Pa. 1996); Faison v. Sex Crimes Unit, 845 F. Supp. 1079, 1084 (E.D. Pa. 1994).  However, none of these cases applied the Minority Tolling Statute to the filing of an administrative complaint, nor did they involve the exhaustion of state administrative remedies.  Rather, each case involved application of the Minority Tolling Statute to a civil action initiated in a court of law under federal statutes. Consequently, we find that [her] reliance on these cases is misplaced.

Finally, [Nicole B.] contends that because the PHRA permits an aggrieved party to “bring an action in the courts of common pleas . . . for legal or equitable relief,” 43 P.S. § 962(c)(1), the Minority Tolling Statute applies to her cause of action filed in the Trial Court.  Relying exclusively on a footnote in Fancsali v. University Health Center of Pittsburgh, 761 A.2d 1159, 1164 n.6 (Pa. 2000), [she] argues that the Minority Tolling Statute “suspend[s] the running of any limitation period for any claim that accrues while a person is a minor.”  We reject this claim.

[Her] assertion is contrary to both the language of the PHRA and our Supreme Court’s holdings in East and Vincent.  Section 12(c)(1) requires that “a complainant invoke[] the procedures set forth in [the PHRA]” before pursuing relief in the courts of common pleas.  Allowing [her] PHRA claims to proceed in the Trial Court, despite the untimely filing of her Administrative Complaint with the Commission, would contravene the PHRA’s well-defined administrative procedures, as well as binding Supreme Court precedent.  Based on the PHRA’s statutory language and the controlling precedent, we conclude that the Minority Tolling Statute does not apply to the filing of an Administrative Complaint with the Commission.

Slip Op. at 13-17 (footnote omitted).

Having decided that neither equitable nor minority tolling applied to her claim, Commonwealth Court affirmed common pleas’ judgment that it lacked jurisdiction over Nicole B.’s complaint.  The Supreme Court granted allocatur limited to the following issues as stated by Nicole B.:

(1) The Pennsylvania Human Relations Act provides 180 days to file a complaint with the Pennsylvania Human Relations Commission (PHRC) and two years to file a civil action after the PHRC issues a right to sue notice. Pennsylvania’s minority tolling statue guarantees minors the “same time for commencing an action” as adults after attaining the age of eighteen. See 42 Pa.C.S. § 5533(b)(i). Without minority tolling, children whose parents fail to timely file with the PHRC will not have the same amount of time as adults to file a civil action because they will be time-barred from pursuing the claim. Does the minority tolling statute apply to PHRC complaints?

(2) Section 962(e) of the PHRA provides for equitable tolling when a person, “through no fault of his own,” is unable to timely pursue his PHRA claims. Minors in Pennsylvania lack the legal capacity to bring their own claims, so they, through no fault of their own, are unable to timely pursue their PHRA claims. Does § 962(e) toll a minor’s PHRA claims?