etc., he could file an appeal with the Office of Human Rights, but that such an appeal must be filed within fifteen days following the effective date of the termination. The letter also explained to plaintiff where he could obtain information on how to file an appeal. Plaintiff's Reply Memorandum, May 9, 1988, Exhibit 2. The thrust of plaintiff's argument, accordingly, is that defendant affirmatively induced plaintiff into delaying his action by informing him of an immediate governmental remedy but not informing him of his right to file a lawsuit. Boiled down, plaintiff is claiming that defendant had a duty to cure plaintiff's ignorance of the law -- that is, his ignorance of his legal right to file a lawsuit.
Certainly, defendant cannot have induced the plaintiff into failing to learn what he already should know. Indeed, plaintiff's position here is rather novel. In all of the foregoing cases cited in this memorandum opinion, plaintiffs argued that they knew of their right to file a lawsuit but were prevented from doing so by some act of defendant. For example, in Bailey, plaintiff argued that defendant induced her to believe that filing a suit would be unnecessary, not that he had prevented her from learning of her right to file a claim. Here, plaintiff is arguing that defendant prevented him from learning of his right to sue.
More significantly, even assuming defendant can be said to have induced the plaintiff into delaying the filing of his lawsuit, that inducement could not have been "affirmative." It is clear from the case law that defendant must have somehow acted affirmatively to prevent plaintiff from filing his lawsuit. For example, in Hornblower, it was not enough that defendant failed to submit the controversy for arbitration after agreeing to have the case resolved through arbitration; for the plaintiff to prevail, he would have to have shown that defendant affirmatively acted to prevent the case from being submitted to arbitration and that plaintiff's efforts to submit the case were accordingly frustrated. Similarly, in Eiker and Brown public acknowledgement of a debt and informal assurances of payment did not constitute affirmative inducement. In McCloskey, the court did find affirmative inducement, since defendant in that case explicitly and directly led plaintiff to believe that the controversy would be resolved without resort to litigation. Similarly, defendant in Bailey, also in a continuous series of contacts with plaintiff, appears to have led plaintiff to believe that compensation from the insurance company would be forthcoming so that the filing of a lawsuit would be unnecessary. In this case, by plaintiff's own allegations, Director Palmer merely informed plaintiff of what his most direct remedy was and did not in any affirmative way induce plaintiff to believe that he could rely on this remedy rather than filing suit. He did not promise success before the Office of Human Rights, or even indicate that an appeal to the Office of Human Rights was the best or only remedy or that there were not other remedies he could pursue at the same time. The Director merely informed plaintiff of his most immediate remedy. Indeed, acceptance of plaintiff's argument here would amount to adoption of new law requiring every employer who informs a terminated employee of any immediate remedies to also remind them of their legal right to sue. We see no need to adopt such a general rule. Therefore, plaintiff has not alleged facts that could support an argument that defendant must be estopped from asserting the statute of limitations as a defense.
Plaintiff also argues that the statute of limitations should be equitably tolled due to defendants' fraudulent concealment of his right to file a lawsuit. If a court determines that a party has fraudulently concealed the existence of a cause of action, the limitations period shall be tolled until plaintiff knows, or by exercise of due diligence
should know, that he may have a cause of action. Weisberg v. Williams, Connolly & Califano, 390 A.2d 992, 995 (D.C. 1978). In order for the doctrine to apply and toll the statute of limitations, "defendant must have done something of an affirmative nature designed to prevent discovery of the cause of action." William J. Davis, Inc. v. Young, 412 A.2d 1187 (D.C. 1980) (emphasis added). Since this doctrine, like the estoppel doctrine, focuses on whether defendant has acted affirmatively to prevent plaintiff from filing his claim, the result is likely to be the same, that is that it shall not require the statute of limitations to be tolled in this case. Indeed, plaintiff in making his argument here relies on the same letter from the former director of the D.C. Department of Corrections that he relied on in making his estoppel argument.
The fraudulent concealment doctrine was enunciated early in Jackson v. Combs, 18 D.C. (1 Mackey) 608 (1888). In that case, Joseph Combs had agreed to pay William Fitch a portion of his claim against the United States as soon as he received satisfaction on the claim. The issue before the court was whether the statute of limitations should be tolled because Combs did not tell Fitch that the United States paid him when it did pay him, so that neither Fitch nor his representatives knew of his cause of action until after the limitations period had already run. The court found no fraudulent concealment, since there was no evidence that "Combs ever used any artifice . . . to conceal the fact of payment from Fitch." 18 D.C. at 617. The court elaborated that "Fitch could easily have put Combs in such a position that his concealment of the fact would have been fraudulent, by addressing to him an inquiry on the subject. A refusal to answer, or false information, would have taken the case out of the statute." 612 D.C. at 612. Another case, Weisberg v. Williams, Connolly & Califano, 390 A.2d 992 (D.C. 1978), involved a malpractice suit against plaintiffs' former attorneys for legal malpractice; defendant-attorneys allegedly failed to timely file plaintiffs' claim. Plaintiffs contended that the defendants fraudulently concealed the running of the statute of limitations on the underlying claim defendants were handling for them. The court held that the fraudulent concealment doctrine could not apply to toll the statute of limitations in that case because there was no evidence that defendants concealed their alleged malpractice with "affirmative misrepresentations." 390 A.2d at 995; accord Estate of Chappelle v. Sanders, 442 A.2d 157, 158 (D.C. 1982) (required "affirmative acts" of fraud); Woodruff v. McConkey, 524 A.2d 722, 728 (D.C. 1987) (required "something of an affirmative nature"). See also Norfleet v. Rosen, 539 A.2d 1089 (D.C. 1988).
The court applied the fraudulent concealment doctrine to toll the statute of limitations in a case where defendant committed deliberate fraud in preventing defendant from knowing that he may have a cause of action. In William J. Davis, Inc. v. Young, 412 A.2d 1187 (D.C. 1980), plaintiff worked for defendant-employer at the minimum wage. When the minimum wage was increased, defendant concealed that increase from plaintiff by paying him the same weekly wage but, in its own records, fraudulently reducing the total number of hours plaintiff worked. The court reiterated that, for the fraudulent concealment doctrine to apply, "defendant must have done something of an affirmative nature designed to prevent discovery of the cause of action." 412 A.2d at 1191. Since "affirmative facts" indicated that the employer intended deliberate fraud, and since plaintiff appeared to be an "unsophisticated employee," the court held that the statute of limitations should be tolled until plaintiff discovered or reasonably should have discovered that his claim existed.
412 A.2d at 1192-93.
In advancing his fraudulent concealment argument, plaintiff again relies entirely on the letter he received from the then Director of the D.C. Department of Corrections at the time of his termination. As discussed earlier in this memorandum opinion, defendant cannot be said to have induced plaintiff into filing his lawsuit. Even, however, assuming he did so, he did not in any way act affirmatively in preventing plaintiff from discovering his cause of action. Additionally, all the foregoing cases addressing the fraudulent concealment doctrine have involved the concealment of the facts giving rise to the cause of action, not the concealment of the very existence of the legal right to file a lawsuit as is argued here by plaintiff. Plaintiff cites Estate of Chappelle and Weisberg for the proposition that "the District of Columbia courts do not limit the fraudulent concealment doctrine to cases in which only the facts underlying a claim have been concealed." Plaintiff's Reply Memorandum, May 9, 1988, at 16. However, neither of these cases stand for that proposition. Estate of Chappelle addresses whether concealment of the facts identifying defendants as opposed to the facts revealing the existence of the cause of action itself is enough to invoke the fraudulent concealment doctrine, which the court answered negatively. Weisberg, similarly, involved concealment of the facts that would support a legal malpractice claim and the issue before the court was whether those facts had been fraudulently concealed. Thus, when both courts discussed the fraudulent concealment of the existence of a cause of action, they were referring to the concealment of the facts giving rise to the cause of action, not to concealment of plaintiff's legal right to file a claim. Plaintiff in the case at bar does not even allege concealment of the facts giving rise to his claim. To agree with plaintiff's argument here would amount to the adoption of new law requiring employers to notify terminated employees of their legal right to sue in every case where they undertake to notify them of any remedy at all. While we leave open the possibility that in a future case we may find that such a notification of other remedies may by design affirmatively act to prevent a plaintiff from filing suit, we see no reason to adopt a blanket policy requiring every employer who attempts to aid terminated employees by notifying them of immediate remedies to also notify them of their legal right to sue. For all of these reasons, plaintiff does not allege facts that could support an argument that the doctrine of fraudulent concealment should toll the statute of limitations.
Accordingly, consideration of plaintiff's Motion For Leave To Amend Complaint Or For Enlargement Of Time, defendant's opposition thereto, plaintiff's reply, and defendant's supplemental oppositions, as well as the arguments of counsel at the hearing held on November 28, 1988, and plaintiff's motion for an oral hearing, and defendant's motion to dismiss the complaint or for summary judgment, and the entire record herein, it hereby is
ORDERED that, for the reasons stated in this memorandum opinion, plaintiff's motion for leave to file an amended complaint is DENIED, and it hereby further is
ORDERED, that plaintiff's motion for enlargement of time in which to respond to defendant's motion to dismiss or for summary judgment is GRANTED, and it hereby further is
ORDERED, that plaintiff shall have until January 17, 1989 to respond to defendant's motion to dismiss or for summary judgment, and it hereby further is
ORDERED, that plaintiff's motion for an oral hearing on his motion to amend was previously granted and oral argument was held, and it is further
ORDERED, that defendant's motion for leave to file a supplemental opposition to plaintiff's motion to amend is GRANTED.