848 F.2d 642 (5th Cir. 1988), 88-1007, Blumberg v. HCA Management Co., Inc.

Docket Nº88-1007
Citation848 F.2d 642
Party NameCharlotte BLUMBERG, Plaintiff-Appellant, v. HCA MANAGEMENT COMPANY, INC. and Hood General Hospital, Defendants-Appellees.
Case DateJuly 05, 1988
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 642

848 F.2d 642 (5th Cir. 1988)

Charlotte BLUMBERG, Plaintiff-Appellant,

v.

HCA MANAGEMENT COMPANY, INC. and Hood General Hospital,

Defendants-Appellees.

No. 88-1007

United States Court of Appeals, Fifth Circuit

July 5, 1988

Rehearing Denied Aug. 1, 1988.

Page 643

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.

Page 644

ALVIN B. RUBIN, Circuit Judge:

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...

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129 practice notes
  • Fahrner v SW Manufacturing, 051601 TNSC, 99-00021
    • United States
    • February 6, 2001
    ...an employer is equitably estopped whenever it does not disclose a violation of the statute.'") (quoting Blumberg v. HCA Mgmt. Co., 848 F.2d 642, 645 (5th Cir. 1988)). But see Bennett v. Coors Brewing Co., 189 F.3d 1221, 1235-36 (10th Cir. 1999); Oshiver v. Levin, Fishbein, Sedran &......
  • 957 F.2d 1172 (5th Cir. 1992), 90-8636, Knowlton v. Greenwood Independent School Dist.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (5th Circuit)
    • March 20, 1992
    ...for the first time in a reply brief, because the appellee is afforded no opportunity to respond. E.g., Blumberg v. HCA Management Co., 848 F.2d 642, 646 (5th Cir.1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 789, 102 L.Ed.2d 781 (1989); Nissho-Iwai Co. v. Occidental Crude Sales, Inc., 729 F......
  • 932 F.2d 473 (5th Cir. 1991), 90-3563, Barrow v. New Orleans S.S. Ass'n
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (5th Circuit)
    • June 6, 1991
    ...and (4) his illiteracy. This circuit considered, but rejected the employee's equitable tolling argument in Blumberg v. HCA Management Co., 848 F.2d 642 (5th Cir.1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 789, 102 L.Ed.2d 781 (1989). In Blumberg, the plaintiff had consulted with attorneys......
  • 47 F.3d 302 (8th Cir. 1995), 94-1363, Anderson v. Unisys Corp.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (8th Circuit)
    • February 14, 1995
    ...959 F.2d 75, 81 (7th Cir.1992) (citing misleading conduct by the EEOC as a basis for equitable tolling); Blumberg v. HCA Management Co., 848 F.2d 642, 644 (5th Cir.1988) (finding that misleading information from the EEOC may justify equitable tolling), cert. denied, 488 U.S. 1007, 109 S.Ct.......
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129 cases
  • Fahrner v SW Manufacturing, 051601 TNSC, 99-00021
    • United States
    • February 6, 2001
    ...an employer is equitably estopped whenever it does not disclose a violation of the statute.'") (quoting Blumberg v. HCA Mgmt. Co., 848 F.2d 642, 645 (5th Cir. 1988)). But see Bennett v. Coors Brewing Co., 189 F.3d 1221, 1235-36 (10th Cir. 1999); Oshiver v. Levin, Fishbein, Sedran &......
  • 957 F.2d 1172 (5th Cir. 1992), 90-8636, Knowlton v. Greenwood Independent School Dist.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (5th Circuit)
    • March 20, 1992
    ...for the first time in a reply brief, because the appellee is afforded no opportunity to respond. E.g., Blumberg v. HCA Management Co., 848 F.2d 642, 646 (5th Cir.1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 789, 102 L.Ed.2d 781 (1989); Nissho-Iwai Co. v. Occidental Crude Sales, Inc., 729 F......
  • 932 F.2d 473 (5th Cir. 1991), 90-3563, Barrow v. New Orleans S.S. Ass'n
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (5th Circuit)
    • June 6, 1991
    ...and (4) his illiteracy. This circuit considered, but rejected the employee's equitable tolling argument in Blumberg v. HCA Management Co., 848 F.2d 642 (5th Cir.1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 789, 102 L.Ed.2d 781 (1989). In Blumberg, the plaintiff had consulted with attorneys......
  • 47 F.3d 302 (8th Cir. 1995), 94-1363, Anderson v. Unisys Corp.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (8th Circuit)
    • February 14, 1995
    ...959 F.2d 75, 81 (7th Cir.1992) (citing misleading conduct by the EEOC as a basis for equitable tolling); Blumberg v. HCA Management Co., 848 F.2d 642, 644 (5th Cir.1988) (finding that misleading information from the EEOC may justify equitable tolling), cert. denied, 488 U.S. 1007, 109 S.Ct.......
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