Wilson v. Westinghouse Elec. Corp.

• Decision Date: 01 February 1988
• Docket Number: No. 86-2498,86-2498
• Citation: 838 F.2d 286
• Parties: 45 Fair Empl.Prac.Cas. 1643, 45 Empl. Prac. Dec. P 37,735, 56 USLW 2457, 10 Fed.R.Serv.3d 100 William E. WILSON, Appellant, v. WESTINGHOUSE ELECTRIC CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 286

838 F.2d 286

45 Fair Empl.Prac.Cas. 1643,

45 Empl. Prac. Dec. P 37,735, 56 USLW 2457,

10 Fed.R.Serv.3d 100

William E. WILSON, Appellant, v. WESTINGHOUSE ELECTRIC CORPORATION, Appellee.

No. 86-2498.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 15, 1987.

Decided Feb. 1, 1988.

H. Kent Munson, St. Louis, Mo., for appellant.

Michael Minton, St. Louis, Mo., for appellee.

Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and ARNOLD, Circuit Judge.

ARNOLD, Circuit Judge.

William Wilson appeals from the District Court's order granting summary judgment to defendant Westinghouse Electric Corporation in Wilson's action under the Age Discrimination in Employment Act (ADEA), as well as under the Missouri law of contract and fraud. We agree with the District Court that Wilson's claims relating to his initial termination are time-barred, and that Wilson has failed to raise a genuine issue of fact from which a jury might reasonably conclude that the 180-day statutory limitations period was tolled. We hold, however, that the District Court erroneously dismissed on jurisdictional grounds Wilson's alternate action under the ADEA for Westinghouse's failure to rehire him, and we remand for further proceedings on this theory. Finally, we affirm the District Court's summary judgment for Westinghouse on Wilson's pendent state-law claims.

I.

Wilson was hired to direct scheduling at Westinghouse's St. Louis Transformer Service Center in January 1978, when he was 51 years old. Wilson remained at his job until 1982, when Westinghouse directed him to train a younger employee to perform the scheduling in St. Louis. On June 30, 1982, Westinghouse sent Wilson a letter informing him that his employment had been terminated and that Westinghouse would provide him with separation allowance of one-half salary for nine months beginning in August 1982. On June 28, 1983, Wilson filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that Westinghouse had unlawfully terminated because of his age.

The District Court awarded summary judgment for Westinghouse on Wilson's termination claim on the ground that Wilson filed his initial EEOC charge after the 180-day limitations period provided by the ADEA, 29 U.S.C. Sec. 626(d)(1), had expired. On appeal, Wilson argues that the limitations period began to run, not with his June 30, 1982, termination letter, but with the expiration of his severance benefits on April 30, 1983, which would have made the filing of his EEOC charge two months later timely. We cannot accept Wilson's proposed alternative termination date. In Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), the Supreme Court rejected a Title VII plaintiff's attempt to establish his final day of employment as the effective date of the "unlawful employment practice," holding instead that the 180-day limitations period commences when the plaintiff receives notice of a termination decision. For present purposes, the limitations provisions for employment-discrimination actions under Title VII and the ADEA are identical, and we are bound to apply the rule in Ricks to the present case. When Westinghouse terminated Wilson, its letter gave him clear notice of its decision well over 180 days before Wilson filed his initial EEOC charge. We do not agree with Wilson's contention that the letter was ambiguous.

Wilson's stronger argument against Westinghouse's limitations defense accepts the June 30, 1982, termination date for purposes of the statute, and claims instead that Westinghouse's conduct justifies the equitable tolling of the limitations period. Wilson asserts on appeal that he understood only that his position in St. Louis was being eliminated, and that Westinghouse had consistently promised him that a new position within the company would be found.

Prior to Westinghouse's motion for summary judgment on its limitations defense, Wilson's testimony at deposition was that

[His supervisor] said [Wilson] was being terminated. He did not say the job was being eliminated. Its not possible to eliminate scheduling in a manufacturing plant.

Wilson Deposition at 188-89, quoted in Brief for Appellee at 15. When asked why he believed that Westinghouse had lulled him into a false sense of security after his termination, Wilson responded:

Everyone I talked to said, you know, everyone is doing everything they can do to find a position for me.

Wilson Deposition (2d) at 30-32, quoted in Appellee's Brief at 12. Wilson's earlier statements at deposition appear to be fatal to his equitable tolling claim, since he had admitted that he knew he was being terminated at the time of his dismissal--not merely reassigned from an eliminated job position. The attempts of Wilson's supervisors to locate a new position for Wilson within the company do not, without more, establish the requisite conditions for equitable tolling. See Kriegesmann v. Barry-Wehmiller Co., 739 F.2d 357, 359 (8th Cir.), cert. denied, 469 U.S. 1036, 105 S.Ct. 512, 83 L.Ed.2d 402 (1984). In order to justify tolling the statute, Wilson must show either "... a deliberate design by the employer or ... actions that the employer should unmistakably have understood would cause the employee to delay filing his charge." Id. (citation omitted.) As a matter of law, nothing that Wilson testified to in his initial depositions satisfies these criteria.

After Westinghouse filed its motion for summary judgment on its limitations defense, Wilson submitted an affidavit which alleged a much stronger version of the facts. In this subsequent affidavit, Wilson claims that

... on or about June 30, 1982, [Wilson] was informed ... that his position at St. Louis Transformer Service Center was being eliminated but that [Wilson] would remain on the active rolls of [the company] and that his employment with the company would continue ... until such time as a new position within [the company] could be found for him.

Wilson Affidavit p. 2, Joint Appendix at 76. On this new version of the facts, Wilson would have considered himself an employee undergoing reassignment to some undetermined new position, so that he would have had no idea at the time that his termination letter meant what it said.

The difficulty is that the conclusory allegations in Wilson's affidavit directly contradict his prior sworn depositions. In particular, Wilson's affidavit constitutes an about-face on the crucial question of whether his supervisor told him that he was being terminated on June 30, 1982. The critical implication created by Wilson's revised testimony--that he believed that his employment with Westinghouse would continue at a reduced salary indefinitely during his reassignment--is supported by no other evidence in the record, and flies in the face of Wilson's admission that he had applied to over fifty prospective employers in the months after he received his termination letter. Joint Appendix at 57-62.

While district courts must exercise extreme care not to take genuine issues of fact away from juries, "(a) party should not be allowed to create issues of credibility by contradicting his own earlier testimony." Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365-66 (8th Cir.1983). Ambiguities and even conflicts in a deponent's testimony are generally matters for the jury to sort out, but a district court may grant summary judgment where a party's sudden and unexplained revision of testimony creates an issue of fact where none existed before. Otherwise, any party could head off a summary judgment motion by supplanting previous depositions ad hoc with a new affidavit, and no case would ever be appropriate for summary judgment. Id. at 1365. On the facts of this case, we agree with the District Court that Wilson's revised account of his termination did not create a genuine issue of fact on which a jury could reasonably find that the limitations period was tolled, and so we affirm its summary judgment for Westinghouse on Wilson's termination claim. It is unnecessary to decide whether Wilson's revised version of the facts, if accepted, would amount to the kind of affirmative misconduct necessary to create equitable tolling under the rule of Kriegesmann v. Barry-Wehmiller Co., supra.

II.

Wilson also appeals the District Court's dismissal of his second ADEA claim, which alleges that Westinghouse unlawfully refused to rehire him because of his age and in retaliation for his previous EEOC charge. Wilson's initial charge, filed on June 28, 1983, concerned only Westinghouse's decision to terminate him. On March 23, 1984, Wilson filed a second EEOC charge which articulated a separate ground involving Westinghouse's failure to rehire him. On April 30, 1984, Wilson filed his original complaint in the District Court, which included a count stemming from his failure-to-rehire charge. Because Wilson commenced his action less than 60 days after he filed his second EEOC charge, the District Court dismissed Wilson's failure-to-rehire claim on the ground that it lacked subject-matter jurisdiction under the ADEA, 29 U.S.C. Sec. 626(d).

Wilson concedes that the ADEA imposes a 60-day waiting period after the filing of an EEOC charge as a prerequisite to federal jurisdiction. He argues, however, that he cured the jurisdictional defect by filing a supplemental complaint after the required 60 days had elapsed, restating his failure-to-rehire claim. The trial court rejected Wilson's attempt to cure the jurisdictional defect, holding that his supplemental pleading relates back to the date of his original complaint under Fed.R.Civ.P. 15(c). (The District Court did say, though, that Wilson could refile his failure-to-rehire claim later, in a separate suit.) On appeal, Wilson objects that the District Court distorted the remedial purpose of the relation-back doctrine by enforcing this rule against a curative pleading.

We agree. In effect, this approach to ...