Dring v. McDonnell Douglas Corp.

• Decision Date: 05 July 1995
• Docket Number: No. 94-2992,94-2992
• Parties: 70 Fair Empl.Prac.Cas. (BNA) 481, 66 Empl. Prac. Dec. P 43,608 Charles L. DRING, Appellant, v. McDONNELL DOUGLAS CORPORATION, doing business as McDonnell Douglas Missile Systems, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1323

58 F.3d 1323

70 Fair Empl.Prac.Cas. (BNA) 481,

66 Empl. Prac. Dec. P 43,608

Charles L. DRING, Appellant, v. McDONNELL DOUGLAS CORPORATION, doing business as McDonnell Douglas Missile Systems, Appellee.

No. 94-2992.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 17, 1995.

Decided July 5, 1995.

David Danis, St. Louis, MO, argued, for appellant.

Thomas C. Walsh, St. Louis, MO, argued (Timothy A. Garnett and Elizabeth A. Bousquette, on brief), for appellee.

Before McMILLIAN, Circuit Judge, HEANEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

McMILLIAN, Circuit Judge.

Charles Dring (Dring) appeals from a final judgment entered in the United States District Court ¹ for the Eastern District of Missouri, granting summary judgment in favor of defendant McDonnell Douglas Corporation (MDC) on Dring's claims of age discrimination. For reversal, Dring argues the district court erred in finding: (1) his administrative complaint was untimely, and (2) he failed to make out a prima facie case of age discrimination. For the reasons discussed below, we affirm.

I.

In mid-1990, in response to a negative economic situation, MDC began a series of "reductions-in-force" in its corporate structure. Dring was one of approximately 550 MDC employees who were laid off as part of a reduction-in-force (RIF) that began in July 1990, and continued throughout the beginning of 1991 at the McDonnell Douglas Missile Systems Co. (MDMSC) in St. Louis, Missouri. Dring began his employment with MDC in 1963 as a planner in the supply support area. He joined MDMSC in 1980 and held a supervisory position until 1985. At the time of his layoff, Dring was a principal specialist of logistics in a department of the Harpoon Program Customer Support Division.

On July 18, 1990, Dring was informed by his immediate supervisor, Terry Allen, and division manager, Ron Moon, that he was being laid off. At the time of this notification, Dring was 54 years old. His layoff, however, was delayed until April 7, 1991, Dring's birthday, so that his early retirement benefits could vest. As required by federal and state law, MDC gave Dring formal notice of his layoff on February 7, 1991, sixty (60) days before its effective date. On the same day that formal notice of termination was given, Allen asked Dring to train another employee who was transferring into the Harpoon program, Edward Kloss, age 38, on his primary job responsibilities. Though this employee was never trained, Dring did train two other employees, ages 48 and 47, before he left the company.

On May 23, 1991, Dring filed an Equal Employment Opportunity Commission (EEOC) charge alleging age discrimination with regard to his layoff. In his EEOC charge, Dring specifically stated that he believed his layoff was in retaliation for protesting an "unfair" performance appraisal from March 1990 through July 1990. He further stated that he believed the negative performance appraisal was the product of age discrimination. Dring in fact had previously initiated an unsuccessful challenge to the unfavorable evaluation through an internal grievance procedure. On April 30, 1992, Dring brought this suit under the Age Discrimination in Employment Act (ADEA) and the Missouri Human Rights Act (MHRA), alleging age discrimination. MDC filed a motion for summary judgment, contending that Dring's claims should be dismissed because he did not file an administrative charge with the EEOC within 300 days of his layoff notification. Further, MDC argued that Dring had failed to make out a prima facie case of age discrimination. The district court entered an order granting MDC's motion for summary judgment. Dring v. McDonnell Douglas Corp., No. 4:92CV838 (E.D.Mo. Mar. 23, 1994) (Memorandum and Order). The district court ruled that Dring's EEOC charge was untimely and, alternatively, that Dring failed to establish a prima facie case. This appeal followed.

II.

As a threshold matter, we consider our appellate jurisdiction in the present case. MDC has argued that Dring's notice of appeal from the district court's order granting summary judgment in favor of MDC was untimely, and that we therefore lack jurisdiction to review this case. MDC contends that the district court's order was issued on March 23, 1994, and that the notice of appeal from that order was not filed until April 25, 1994, 33 days after the date of the district court's order. Federal Rule of Appellate Procedure 4(a)(1) provides in part that a notice of appeal must be filed "within 30 days after the date of entry of the judgment or order appealed from." Federal Rule of Appellate Procedure 4(a)(7) further provides that "[a] judgment or order is entered within the meaning of this Rule 4(a) when it is entered in compliance with Rules 58 and 79(a) of the Federal Rules of Civil Procedure." See Virgo v. Riviera Beach Assocs., 30 F.3d 1350, 1356 (11th Cir.1994). In the present case, the entry of judgment in accordance with these rules did not occur until March 25, 1994, two days after the issuance of the district court's order granting summary judgment. See Appellant's Appendix at 5 (Clerk's docket entries). Thirty days from that date would be April 24, 1994, which was a Sunday. Because the thirtieth day was a Sunday, Federal Rule of Civil Procedure 6(a) requires that the filing party be given one extra day to file. Consequently, the notice of appeal, filed on April 25, 1994 was timely filed. Therefore, we are satisfied we have appellate jurisdiction. ²

III.

The next threshold issue which we must consider is the statutory requirement that ADEA plaintiffs timely file a charge with the EEOC. Specifically, federal law requires that, before a plaintiff may sue an employer under the ADEA, he or she must file a charge with the EEOC within 180 days of the "alleged unlawful practice." 29 U.S.C. Sec. 626(d). Because Missouri also has a law prohibiting age discrimination, the time to file a charge with the EEOC is extended to 300 days. Id. This administrative deadline is not a jurisdictional prerequisite; rather, it is treated like a statute of limitations. Zipes v. Trans World Airlines, 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982); DeBrunner v. Midway Equip. Co., 803 F.2d 950, 952 (8th Cir.1986) (DeBrunner ). If a plaintiff fails to file a timely charge, the lawsuit is barred unless he or she can demonstrate that the limitations period is subject to equitable modification such as waiver, estoppel, or tolling. Anderson v. Unisys Corp., 47 F.3d 302, 306 (8th Cir.1994) (Anderson ); Heideman v. PFL, 904 F.2d 1262, 1265 (8th Cir.1990) (Heideman ), cert. denied, 498 U.S. 1026, 111 S.Ct. 676, 112 L.Ed.2d 668 (1991).

A.

Dring argues that July 18, 1990, the date of his layoff notification, is not the proper date from which to begin the 300-day period. He contends that the proper date is February 7, 1991, the date of his formal notice, because, on that day, his supervisor told him to train a 38-year-old employee in his three principal areas of responsibility. Dring maintains that it was at this point, and not before, that he was "able to tie everything together and determine in his mind that his layoff was because of age discrimination." Brief for Appellant at 17. Dring argues that he had no way of knowing that the decision to terminate his employment was based upon age discrimination until he learned on February 7, 1991, that his job duties were going to continue and that a younger employee would perform them. Thus, he believes that the 300-day period for filing an EEOC charge should be considered equitably tolled until that date. Dring maintains it was the deliberate design of MDC to convince laid off employees that the termination decision was based solely on economic necessity, and not age.

MDC argues that the date of the notification of the layoff, July 18, 1990, should be the date from which we calculate the EEOC filing period. MDC contends that the charge, filed 309 days later, on May 23, 1991, would therefore be untimely. It argues that the principle of equitable tolling cannot be used by a plaintiff to extend the time for filing an EEOC charge simply because he or she had failed to put "two and two together" and figure out the true animus behind the adverse employment action. MDC argues that only positive misconduct on the part of the employer, designed to conceal its true motivations, will allow a plaintiff to invoke the doctrine of equitable tolling. MDC maintains that there is absolutely no evidence of any such misconduct on its part, and, therefore, Dring's failure to timely file his EEOC charge bars the maintenance of the present action.

B.

To resolve this statute of limitations question, we must first determine the date on which the statute of limitations began to run. Such date is referred to as the accrual date. In Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) (Ricks ), the Supreme Court considered, in a Title VII context whether a cause of action for discrimination accrued when the plaintiff, a college professor, was denied tenure, allegedly on discriminatory grounds, or when his employment contract expired a year later. The Court held that the statute began to run once the denial of tenure, the allegedly unlawful act, was communicated to the plaintiff. Id. at 258, 101 S.Ct. at 504. In the context of an ADEA action, our court, following Ricks, has accordingly held that the limitations period begins to run when the plaintiff receives notice of a termination decision. Wilson v. Westinghouse Elec. Corp., 838 F.2d 286, 288 (8th Cir.1988). Thus, the accrual date is simply the date on which the adverse employment action is communicated to the plaintiff. See Hamilton v. 1st Source Bank, 928 F.2d 86, 88-89 (4th Cir.1990) ("To the extent that notice enters the analysis, it is notice of the employer's actions, not the notice of a discriminatory effect or motivation that...