851 F.Supp. 1312 (D.Minn. 1993), CV 3-91-770, Wiehoff v. GTE Directories Corp.

Docket Nº:CV 3-91-770.
Citation:851 F.Supp. 1312
Party Name:James W. WIEHOFF, Plaintiff, v. GTE DIRECTORIES CORP., GTE Directories Sales Corp., and GTE Directories Service Corp., d/b/a GTE Sun Community Directories, Defendants.
Case Date:June 22, 1993
Court:United States District Courts, 8th Circuit, District of Minnesota

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851 F.Supp. 1312 (D.Minn. 1993)

James W. WIEHOFF, Plaintiff,


GTE DIRECTORIES CORP., GTE Directories Sales Corp., and GTE Directories Service Corp., d/b/a GTE Sun Community Directories, Defendants.

No. CV 3-91-770.

United States District Court, D. Minnesota, Third Division.

June 22, 1993

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[Copyrighted Material Omitted]

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Joseph W. Hammell and Catherine R. Landman, Dorsey & Whitney, Minneapolis, MN, for plaintiff.

John W. Polley and Patricia K. Oakes, Faegre & Benson, Minneapolis, MN, for defendants.


KYLE, District Judge.


Before the Court is defendant GTE Directories Corporation, GTE Directories Sales Corporation, and GTE Directories Service Corporation's (collectively "GTE") Motion for Partial Summary Judgment. GTE moves for partial summary judgment on the grounds that plaintiff James W. Wiehoff's ("Wiehoff") claims of age discrimination and retaliation under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (1985) ("ADEA") 1 are barred by the applicable statute of limitations.


GTE terminated Wiehoff's employment as a sales representative on or about August 29, 1988. 2 He was notified of his termination on August 22, 1988.

On December 8, 1988, Wiehoff filed a charge with the Minnesota Department of Human Rights ("MDHR") alleging age discrimination and reprisal in violation of the Minnesota Human Rights Act, Minn.Stat. § 363.01 et seq. ("MHRA"). Oakes Aff., Exh. B. The MDHR cross-filed the charge with the Equal Employment Opportunity Commission ("EEOC"), and the EEOC informed Wiehoff that the MDHR would process his charge pursuant to a worksharing agreement between the EEOC and the MDHR. Oakes Aff., Exh. C ("The EEOC maintains a close working relationship with state and local enforcement agencies with respect to the processing of charges of employment discrimination. We strongly encourage your cooperation with the state agency named above in its processing of your charge."). This letter also stated:

The Age Discrimination in Employment Act of 1967, as amended (ADEA) provides that an individual may file suit in federal court upon the expiration of 60 days from the date of the charge was filed and up to two years after the date of the alleged violation (three years where the violation was willful). However, the ADEA does limit the recovery of back wages to a period of two years prior to the date suit is filed (or three years, if a willful violation is proven). The applicable statute of limitations is determined by the court. Thus, if you intend to pursue this matter through litigation, it is important that suit be filed within two years from the date of the alleged discrimination.

Id. At the same time, the EEOC informed GTE of the age discrimination and retaliation charge filed by Wiehoff and of MDHR's processing of the charge and encouraged GTE to cooperate with the MDHR. Landman Aff., Exh. 5.

On June 19, 1989, the MDHR completed its investigation of Wiehoff's charge and informed both Wiehoff and GTE that "[a] determination has been made that probable cause exists to credit the allegation that an unfair discriminatory practice has been committed." Landman Aff., Exhs. 8 and 9. The parties' subsequent efforts to conciliate, at the invitation of the MDHR, were unsuccessful, and on December 7, 1989, the MDHR informed the parties that the case would be forwarded to the Minnesota Attorney General's office for litigation. Landman Aff., Exhs. 11 and 12. On or about December 7, 1990, Wiehoff received a form letter from the EEOC explaining the Age Discrimination

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Claims Assistance Amendments of 1990, Pub.L. 100-283, 102 Stat. 78, as amended Pub.L. 101-504, 104 Stat. 1298, reprinted in 29 U.S.C.A. § 626 (note) (hereinafter "1990 ADCAA"), and its possible effect on his charge. The letter stated in part:

If your charge is covered by ADCAA, as described in the enclosed Fact Sheet, you may now have extended time to sue under the ADEA so long as your lawsuit is filed by January 26, 1992.

* * * * * *

The ADCAA also extends the limitations periods for EEOC lawsuits in some cases. If your charge is still being processed by EEOC, we are reviewing the circumstances of your charge to determine how this law may affect your case. The office which is investigating your charge will notify you when the investigation is complete. HOWEVER, THIS LETTER IS THE OFFICIAL NOTICE WHICH THE LAW REQUIRES TO INFORM YOU THAT YOUR RIGHT TO SUE UNDER THE ADEA MAY BE RESTORED.

Oakes Supplemental Aff., Exh. D (Emphasis in original).

The attached Fact Sheet summarized the application of the 1990 ADCAA and the requirements set forth in section three of that act. The Fact Sheet included the following statements:

ADCAA, as amended, covers a number of ADEA cases in which the right of persons to sue in court within two years of the date of discrimination (without having to prove willful violation) had passed while the agency's investigation [referring to the EEOC and state and local agencies] was still incomplete. It may or may not cover the rights of those alleging willful violations where the three year period has not yet expired. The rights of all these persons to sue may be restored so long as the lawsuit is filed by January 26, 1992.

* * * * * *

NOTE: Attorneys are advised that some courts have dismissed as untimely a claim brought after three years because willfulness was raised in the judicial complaint, whereas, the ADCAA notice provided by EEOC was based on expiration of the two year non-willful period. Allegations of willful violations should be filed within the three year limitations period where such period has not yet expired even though the ADCAA notice may indicate a later filing date is possible....

Oakes Supplemental Aff., Exh. D (Emphasis in original).

On June 21, 1991, Wiehoff received a letter from the EEOC indicating that the EEOC was "terminating its processing" of his age discrimination charge, and stating that he had

an age discrimination claim being processed at the Minnesota Department of Human Rights under its age discrimination law and an age discrimination claim pending at the EEOC under the federal Age Discrimination in Employment Act (ADEA) of 1967, as amended.

* * * * * *

Our review of your charge reveals that the alleged discrimination occurred on August 26, 1988 and was not willful and that the two year statute of limitations for filing a federal lawsuit lapsed on August 26, 1990.

You have previously been informed by letter however, that the Age Discrimination Claims Assistance Act of 1990 extends the time to sue under the ADEA until January 26, 1992.

It is our understanding the Minnesota Department of Human Rights will continue to process your discrimination claim under its age discrimination law. Please contact that agency for further information on the processing of your charge and your right to file a private lawsuit under the age law they enforce.

Landman Aff., Exh. 13. 3]

On or about November 8, 1991, Wiehoff commenced this action, alleging violation of the MHRA and the ADEA based on age discrimination and retaliation. Complaint,

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pp 13-24. Wiehoff seeks damages for pain and suffering and emotional distress; an award of past and future compensation; an order restoring his pension benefits; and an award of punitive damages and civil penalty. Complaint, Prayer for Relief.

In its Motion for Partial Summary Judgment 4, GTE asserts that Wiehoff has alleged a willful violation of the ADEA for which there is a three year statute of limitations for filing a lawsuit. GTE argues that the cause of action accrued upon notification of termination (August 22, 1988) and is therefore time-barred. Furthermore, GTE argues that Wiehoff's ADEA claim is not revived by the 1990 ADCAA as it does not meet all the requirements for revival.

Wiehoff contends that his ADEA claim includes allegations of both willful and non-willful violations, and that the claim is timely because the statute of limitations was tolled during conciliation with the MDHR. Alternatively, Wiehoff argues that the 1990 ADCAA does revive his claim of willful violation because the 1990 ADCAA applies a two-year statute of limitations in all cases, whether or not the allegations are of non-willful violation.



The moving party is not entitled to summary judgment unless the movant can show that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a summary judgment motion, a court must determine whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The role of the court is not to weigh the evidence but instead to determine whether, as a matter of law, a genuine issue of material fact exists. Agristor Leasing v. Farrow, 826 F.2d 732, 733 (8th Cir.1987). "In making this determination, the court is required to view the evidence in the light most favorable to the non-moving party and to give that party the benefit of all reasonable inferences to be drawn from the facts." Id. at 734.

"To withstand a motion for summary judgment, a party need not prove in its favor an issue of material fact; all that is required is sufficient evidence supporting a material factual dispute that would require resolution by a trier of fact." Unigroup v. O'Rourke Storage & Transfer, 980 F.2d 1217, 1220 (8th Cir.1992) (citations omitted). The non-moving party may not merely...

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