Nielsen v. Western Elec. Co., Inc.
| Decision Date | 24 August 1979 |
| Docket Number | No. 78-1900,78-1900 |
| Parties | 20 Fair Empl.Prac.Cas. 1003, 20 Empl. Prac. Dec. P 30,219 Ralph A. NIELSEN, Plaintiff-Appellant, v. WESTERN ELECTRIC COMPANY, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Thomas G. Kokoruda, Shughart, Thomson & Kilroy, Kansas City, Mo. (argued), R. Lawrence Ward and George A. Barton, Kansas City, Mo., on brief, for plaintiff-appellant.
Sandra L. Schermerhorn, Spencer, Fane, Britt & Browne, Kansas City, Mo., (argued), and Jack L. Whitacre, Kansas City, Mo., on brief, for defendant-appellee.
Before LAY and HEANEY, Circuit Judges, and DEVITT, Chief District Judge. *
Plaintiff appeals from the district court's entry of summary judgment finding his claim of discriminatory demotion in employment on account of age to be barred by failure to file a notice of intent to sue within the statutorily required 180 day period and from its ruling that neither damages for pain and suffering nor punitive damages are recoverable under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, Et seq. We affirm.
Plaintiff started employment at Western Electric on January 7, 1957 as a planning engineer and worked up to department chief. He was demoted on August 15, 1975 to senior engineer, Quality Control, and was thereafter, on several occasions, denied voluntary layoff status. 1 He filed notice of intent to sue with the Secretary of Labor on August 31, 1976, more than one year after his demotion. The statute, 29 U.S.C. § 626(d)(1), requires the notice to be filed within 180 days. 2
Plaintiff alleged that his demotion and inability to obtain voluntary layoff status were part of a continuing pattern of discrimination and therefore the 180 day notice period did not begin to run until August 2, 1976, the time when Nielsen was last denied voluntary layoff status. 3 Alternatively, plaintiff alleged that equitable considerations justify the tolling of the notice period until August 2, 1976. Plaintiff prayed for actual and liquidated damages as well as punitive damages for pain and suffering.
Defendant moved for summary judgment or, alternately, to strike or dismiss those portions of the complaint based on Nielsen's demotion, claiming such was barred because Nielsen failed to timely file his notice of intent to sue. Defendant also moved to strike claims for pain and suffering and punitive damages on grounds that such damages are not recoverable under the Act.
The district court treated plaintiff's claims based on his demotion and the company's refusal to grant him voluntary layoff status as separate claims. After a full trial-type evidentiary hearing on whether the notice was timely filed, the district court granted Western Electric's motion for summary judgment.
The district court also granted Western Electric's motion to strike the claims for punitive damages and for pain and suffering on the grounds that such damages are not recoverable under the Act. 4 Nielsen's remaining claim based on Western Electric's refusal to grant voluntary layoff status was tried to a jury on November 13, 14 and 15, 1978. It returned a verdict for defendant. The judgment based on that verdict is not challenged on this appeal.
In ruling on Nielsen's claim that equitable considerations require tolling the 180 day notice period, the district court correctly concluded that the notice requirement is not jurisdictional but is similar to a statute of limitations and therefore subject to equitable tolling. See, e. g., Kephart v. Institute of Gas Technology, 581 F.2d 1287 (7th Cir. 1978); Reich v. Dow Badische Co., 575 F.2d 363 (2d Cir. 1978); Bonham v. Dresser Industries, Inc., 569 F.2d 187 (3d Cir. 1978); Charlier v. S.C. Johnson & Son, Inc.,556 F.2d 761, 765 (5th Cir. 1977); Dartt v. Shell Oil Company, 539 F.2d 1256 (10th Cir. 1976), aff'd by an equally divided court, 434 U.S. 99, 98 S.Ct. 600, 54 L.Ed.2d 270 (1977).
While summary judgment under Rule 56 is intended for the disposition of legal issues where "there is no genuine issue as to any material fact," and it would be improper to grant summary judgment where questions of fact exist on the issue of tolling the 180 day notice requirement, Bonham v. Dresser Industries, Inc., 569 F.2d 187 (3d. Cir. 1978), we do not view the proceeding below as one for summary judgment. The record reflects that both parties treated the proceeding as a trial on the factual issues underlying plaintiff's claim for equitable tolling. 5 Plaintiff testified under oath and was subject to cross examination; objections were made and ruled on. Plaintiff's counsel conceded at oral argument that he presented all available evidence in support of his position.
Since all the evidence on the issue of equitable tolling was presented and argued, we consider the district court proceeding to have been a hearing in the nature of a trial on that issue. There is no reason why parties cannot agree to try certain issues on the merits and if the parties have done so, we properly may treat such proceeding as a trial on those issues even though cast in the form of a motion for summary judgment. Starsky v. Williams, 512 F.2d 109 (9th Cir. 1975); Gillespie v. Norris, 231 F.2d 881 (9th Cir. 1956); Tripp v. May, 189 F.2d 198 (7th Cir. 1951).
Because we treat the lower court proceeding as a trial on the factual issues underlying Nielsen's claim for equitable tolling, we are bound by the findings of the district court unless they are clearly erroneous. Fed R. Civ.P. 52(a); Layne-Minnesota p. r., Inc. v. Singer Co., 574 F.2d 429 (8th Cir. 1978).
The district court found that Nielsen "had sufficient facts in the fall of 1975 from which he could have determined that the company might be guilty of age discrimination." (Briefs, Joint Appendix at p. 24.) The district...
To continue reading
Request your trial
-
Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt
...technically a disposition by a summary judgment.' " Id. at 200 (quoting 3 Barron & Holtzoff Sec. 1239); accord, Nielsen v. Western Electric Co., 603 F.2d 741, 743 (8th Cir.1979); Starsky v. Williams, 512 F.2d 109, 113 (9th Cir.1975); 10 C. Wright & A. Miller, Federal Practice and Procedure ......
-
Lopez v. Bulova Watch Co., Inc., Civ. A. No. 83-0585S.
...628 F.2d 949 (6th Cir.1980) (en banc); Coke v. General Adjustment Bureau, Inc., 616 F.2d 785 (5th Cir.1980); Nielsen v. Western Electric Co., 603 F.2d 741 (8th Cir.1979); Kephart v. Institute of Gas Technology, 581 F.2d 1287 (7th Cir.1978), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.E......
-
McKenzie v. Lunds, Inc.
...because of the "employer's concealment, misrepresentation, or failure to post adequate notice," quoting Nielsen v. Western Elec. Co., Inc., 603 F.2d 741, 743 (8th Cir.1979)); Walker v. St. Anthony's Medical Ctr., supra at 557 (quoting the above from Summary Judgment is appropriate, on an AD......
-
Mummelthie v. City of Mason City, Iowa
...because of the "employer's concealment, misrepresentation, or failure to post adequate notice," quoting Nielsen v. Western Elec. Co., Inc., 603 F.2d 741, 743 (8th Cir. 1979)); Walker, 881 F.2d at 557 (quoting the above from Summary judgment is appropriate on an ADEA claim where the plaintif......