Blumberg v. HCA Management Co., Inc.
| Decision Date | 05 July 1988 |
| Docket Number | No. 88-1007,88-1007 |
| Citation | 848 F.2d 642 |
| Parties | 47 Fair Empl.Prac.Cas. 353, 47 Empl. Prac. Dec. P 38,131 Charlotte BLUMBERG, Plaintiff-Appellant, v. HCA MANAGEMENT COMPANY, INC. and Hood General Hospital, Defendants-Appellees. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Laurance L. Priddy, Fort Worth, Tex., for plaintiff-appellant.
Jefferson D. Kirby, III, Paul D. Jones, Atlanta, Ga., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Texas.
Before GEE, RUBIN, and SMITH, Circuit Judges.
Charlotte Blumberg charges that she was discharged from employment as a nurse at Hood General Hospital in violation of the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-634. Blumberg was born on January 8, 1920, and was 63 years old when the Hospital discharged her on August 3, 1983, after she had been working there as a nurse for six years. Blumberg was replaced by a woman in her thirties. The defendants sought summary judgment on the basis that Blumberg's complaint had not been filed within the 180 days following termination that the statute allowed. Blumberg had filed a charge with the Equal Employment Opportunity Commission on May 23, 1984, 294 days after her discharge. She contended, however, that the 180-day filing period had been equitably tolled. The court reserved ruling on this motion and a subsequent motion for a directed verdict, and it submitted the case on the merits to a jury. The jury returned a verdict in favor of Blumberg, awarding her $54,284 in back pay.
In response to a special interrogatory, the jury found that it became or should have become apparent to Blumberg in April 1984 that age was a determinative factor in her discharge. This was less than 180 days before she filed her charge with the EEOC. The trial court nevertheless entered judgment in favor of the defendants notwithstanding the jury verdict, holding that Blumberg had failed to file a charge with the EEOC within 180 days of her termination as required by Sec. 626(d)(1) of the ADEA and that she had not shown that the statutory period should be equitably tolled because she had testified that she had believed that age was a factor in the way she was being treated on the job and she had thought she was a victim of discrimination not only at the time of her termination but even six weeks before, for in June 1983, after her superiors had counselled her about her job performance, Blumberg, with her son's help, had composed a letter that she never mailed, and she thought at that time that she was being discriminated against because of her age.
Conceding that her EEOC charge was filed more than 180 days after her discharge, Blumberg contends that the statutory period was tolled, first because there was substantial evidence to support the jury finding that she first knew of the age discrimination in April 1984, and, in addition, because (1) the Hospital opposed her claim for employment benefits on the basis that she had been discharged for cause, thus concealing important evidence; (2) she had difficulty finding a lawyer to represent her and succeeded in finding present counsel only after two others had declined her case; and (3) the Hospital later terminated other employees because of their age, providing a further basis for her claim.
The ADEA provides that no civil action may be commenced until 60 days after a charge alleging unlawful discrimination has been filed with the EEOC and requires that such a charge must be filed within 180 days after the alleged unlawful practice occurred. 1 Timely filing is not, however, jurisdictional, and the 180-day period may be equitably tolled, 2 but if the complaint is not timely filed, the plaintiff has the burden of demonstrating a factual basis to toll the period. 3 In Chappell v. Emco Machine Works Co. 4 we discussed three possible bases for tolling: (1) the pendency of a suit between the same parties in the wrong forum; (2) plaintiff's unawareness of the facts giving rise to the claim because of the defendant's intentional concealment of them; and (3) the EEOC's misleading the plaintiff about the nature of her rights. Chappell does not hold that these three are the only bases for tolling, but even if other circumstances may toll the running of the period, the circumstances of this case do not.
Although Blumberg contends that she was not aware of all of the evidence upon which she ultimately relied at trial until sometime after her discharge, it is not necessary for a claimant to know all of the evidence for her to file a claim or to begin the 180-day period, nor do subsequent acts of alleged discrimination against other employees toll the period. 5 The time begins when facts that would support a cause of action are or should be apparent. 6 As we noted in Pruet Production Co. v. Ayles, 7 a plaintiff who is aware that she is being replaced in a position she believes she is able to handle by a person outside the protected age group knows enough to support filing a claim.
Here, Blumberg knew that she was a member of the protected age class, she was aware that she had been terminated from a job she considered herself qualified to perform, and she believed her replacement to be a woman in her thirties, Tricia Hartzoge. Even if the Hospital later contended that a full-time replacement for her was not hired until sometime later, when Barbara Fordom, a woman in her fifties, was first employed, such a contention in no way lulled Blumberg into delaying the filing of her charge.
Blumberg also contends that the Hospital is estopped from invoking her failure to file a timely discrimination charge because it concealed the reason for her termination. Unlike the plaintiffs in the cases upon which she relies, 8 however, Blumberg was advised at the time of her termination that she was being discharged for cause, and she was able to evaluate the propriety of the reasons for her dismissal immediately. Blumberg's suggestion that the Hospital somehow misled her by not expressly declaring that her discharge was due to her age is tantamount to asserting that an employer is equitably estopped whenever it does not disclose a violation of the statute. This would make the 180-day period virtually meaningless.
Blumberg's reliance on her own failure to retain a lawyer is misplaced. She consulted attorneys within the limitations period and was informed that a charge of discrimination would have to be filed with the EEOC. She was not therefore ignorant of her rights. 9
The district court therefore did not err in entering judgment for the defendants despite the jury's verdict. Under the standard set forth in Boeing Co. v. Shipman, 10 Blumberg's testimony establishes that the facts and inferences point so strongly and overwhelmingly in favor of her knowledge of her claim at the time of her discharge that reasonable jurors could not arrive at a contrary verdict.
In the district court the parties agreed that when Blumberg was fired on August 3, 1983, Texas had no state agency for civil rights complaints and was therefore not a deferral state. Within a few months thereafter, Texas established a state agency, the Texas Commission on Human Rights, and became a deferral state. Had Blumberg been fired just a short time later than she was, she would have had the benefit of the full 300 days allowed for deferral states in which to file her claim.
In her initial brief, Blumberg relies solely on equitable tolling of the 180-day period. In her reply brief,...
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...1990), §28:5.C.2.c Bluitt v. Eval Company of America, Inc ., 3 F. Supp. 2d 761 (S.D. Tex. 1998), App. 25-2 Blumberg v. HCA Mgmt. Co. , 848 F.2d 642, 644 (5th Cir. 1988), §18:7.B.2 Blum v. Gulf Oil Corp. , 597 F.2d 936 (5th Cir. 1979), §§19:5.E, 24:6.B Blum v. Witco Chem. Corp ., 829 F.2d 36......
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Table of cases
...1990), §28:5.C.2.c Bluitt v. Eval Company of America, Inc ., 3 F. Supp. 2d 761 (S.D. Tex. 1998), App. 25-2 Blumberg v. HCA Mgmt. Co. , 848 F.2d 642, 644 (5th Cir. 1988), §18:7.B.2 Blum v. Gulf Oil Corp. , 597 F.2d 936 (5th Cir. 1979), §§19:5.E, 24:6.B Blum v. Witco Chem. Corp ., 829 F.2d 36......