Gray v. Phillips Petroleum Co., s. 87-1144
| Decision Date | 30 September 1988 |
| Docket Number | Nos. 87-1144,87-1145,s. 87-1144 |
| Citation | 858 F.2d 610 |
| Parties | 49 Fair Empl.Prac.Cas. 67, 47 Empl. Prac. Dec. P 38,345 Robert L. GRAY; Paul W. Babcock; Robert N. Cardwell; Kenneth P. Davis; Melvin P. Deweese; Gene E. Eastham; Fred M. Graham, Jr.; Stanley M. Hachinsky; Marvin R. Harbour; Roy E. Hauk; Robert P. Jones; Chester W. Martinson; Patrick C. McNellis; Elmer A. Nilges; W.E. Pickert; Charles Powell; Joseph R. Stanley; Robert E. Walsh; Dennis R. Worthington; Joseph S. Ogle; James L. Anson; Leonard P. Belan; Robert E. Brooks; Alfred E. Dyer; Richard W. Jackson; Clyde Lewis; William E. Neustaedter; Elmer J. Rome; Clarence J. Zuger; and Bobby S. Dysart, Plaintiffs-Appellants/Cross- Appellees, v. PHILLIPS PETROLEUM COMPANY, Defendant-Appellee/Cross-Appellant, Equal Employment Advisory Council, Amicus Curiae, Equal Employment Opportunity Commission, Amicus Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John H. Fields (Blaise R. Plummer with him on the briefs), of Carson & Fields, Kansas City, Kan., for plaintiffs-appellants/cross appellees.
David J. Waxse of Shook, Hardy & Bacon, Kansas City, Mo. (James H. Ottman, Elinor P. Schroeder, and Carol F. Fowler of Shook, Hardy & Bacon, Kansas City, Mo., and William G. Paul, Gen. Counsel, Charles R. Griffin, Associate Gen. Counsel, and C.H. Purdy, Atty., Phillips Petroleum Co., Bartlesville, Okl., of counsel, with him on the briefs), for defendant-appellee/cross-appellant.
Michael L. Foreman, Atty. (Charles A. Shanor, Gen. Counsel, Gwendolyn Young Reams, Associate Gen. Counsel, Susan Buckingham Reilly, Asst. Gen. Counsel, and Audrey Moore, Legal Intern, on the brief), E.E.O.C. Washington, D.C., for amicus curiae E.E.O.C.
Robert E. Williams, Douglas S. McDowell, and Garen E. Dodge of McGuiness & Williams, Washington, D.C., on the brief, for amicus curiae Equal Employment Advisory Council.
Before HOLLOWAY, Chief Judge, and McKAY and BALDOCK, Circuit Judges.
This appeal reviews the denial of summary judgment in an age discrimination suit brought under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621-34 (1982).
The pertinent facts reveal that on March 9, 1982, Phillips Petroleum Company (Phillips) announced that it was intending to close its Kansas City, Kansas, refinery in six months. 1 Subsequent to this announcement, Phillips negotiated three agreements (Stipulations I, II, and III) with the Oil, Chemical and Atomic Workers International Union, Local No. 5-604 (the Union). Pursuant to Stipulation I, dated March 23, 1982, Phillips agreed to consider qualified employees from the Kansas City refinery for employment at Phillips' other facilities. Specifically, Phillips agreed to consider Kansas City employees "for employment at other company facilities where openings exist," record, vol. 1, doc. 13, exh. A, at 1, "during the six (6) month period consistent with the notice of planned closure dated March 9, 1982, and ending with the date of closure, on September 9, 1982." Id. Under Stipulation II, also dated March 23, 1982, Phillips and the Union agreed to modify the current working agreement "to maximize efficiency in an orderly closing of the refinery and achieve flexibility in employee utilization that [would] aid in the release of employees for other employment." Id. at exh. B, at 1. Pursuant to Stipulation III, dated June 28, 1982, Phillips and the Union established effective dates for the closure and agreed that on August 31, 1982, the refinery would cease to operate and all remaining employees would be terminated. Record, vol. 2, doc. 114, exh. 1; see infra p. 615.
On August 31, 1982, Phillips closed the Kansas City refinery as scheduled, and the employees were dismissed. The employees continued to receive their regular wages through September 9, 1982, in accordance with the six-month notice requirement.
Also on August 31, 1982, plaintiff Robert L. Gray filed a charge of age discrimination with the Equal Employment Opportunity Commission (EEOC), claiming that Phillips had denied him an employment transfer to another Phillips' facility during the closing period because of his age. On October 15, 1982, plaintiff Robert E. Walsh filed a similar charge with the EEOC. By February 8, 1983, other employees from the Kansas City refinery were organizing to file an age discrimination charge against Phillips; and on March 2, 1983, a charge of age discrimination was filed with the EEOC in the name of P.C. McNellis on behalf of all former employees of the Kansas City refinery who were similarly situated. These charges were processed by the EEOC, and Phillips participated in the EEOC proceedings. The parties failed to resolve their differences; as a result, two separate lawsuits were initiated in the United States District Court for the District of Kansas. 2 Both suits alleged that Phillips violated the ADEA when it made its employment transfer decisions during the closing period by discriminating against plaintiffs on the basis of their age.
The two actions were consolidated. Phillips filed a motion to dismiss or, in the alternative, for summary judgment, claiming that plaintiffs' discrimination charges had not been filed with the EEOC within 180 days of August 31, 1982, the alleged wrongful termination date. See 29 U.S.C. Sec. 626(d)(1) (1982). 3 Plaintiffs filed an amended complaint and changed the date of the alleged discriminatory action from August 31, 1982, to September 9, 1982. According to the district court, this change made the filing of the discrimination charge timely under the pleadings. Consequently, the district court denied Phillips' motion for dismissal or summary judgment. 638 F.Supp. 789 (D.Kan.1986).
Phillips subsequently filed a second motion for summary judgment, again claiming that plaintiffs' discrimination charges had not been filed within the requisite limitations period. The district court ruled that (1) ADEA's 180-day limitations period began to run on August 31, 1982, (2) the only plaintiffs who filed a charge of discrimination within the 180-day time limit were plaintiffs Gray and Walsh, (3) plaintiffs had not raised facts sufficient to establish equitable tolling of the 180-day limit, but (4) plaintiffs Gray and Walsh are representative of the similarly situated plaintiffs who had not filed within the 180-day period. Because the district court determined that plaintiffs Gray and Walsh are representative of the other plaintiffs, the district court denied Phillips' motion for summary judgment. Pursuant to 28 U.S.C. Sec. 1292(b) (1982), the district court certified for appeal the denial of Phillips' second motion for summary judgment. 4 We are thus presented with all rulings contained in the district court's order denying that motion.
Phillips claims that the district court erred in determining that plaintiffs Gray and Walsh are representative of the plaintiffs who failed to file a timely charge with the EEOC (the class plaintiffs) 5 and thus in denying Phillips' motion for summary judgment. Plaintiffs, on the other hand, urge affirmance of the denial of summary judgment, contending that the district court was correct in determining that plaintiffs Gray and Walsh are representative of the class plaintiffs. Plaintiffs also urge affirmance on an alternative ground, claiming that the March 2, 1983, filing was timely because (1) the 180-day period did not begin to run until September 9, 1982, and (2) even if the 180-day period did begin to run on August 31, 1982, equitable reasons tolled the running.
This court reviews the grant or denial of a motion for summary judgment by applying "the same standard employed by the trial court under Fed.R.Civ.P. 56(c)," Ewing v. Amoco Oil Co., 823 F.2d 1432, 1437 (10th Cir.1987) (citing United States v. Gammache, 713 F.2d 588, 594 (10th Cir.1983)), "because the trial court has no real discretion in deciding whether to grant summary judgment." Russell v. American States Insurance Co., 813 F.2d 306, 308 (10th Cir.1987) (citing Gammache, 713 F.2d at 594). Pursuant to Rule 56(c), summary judgment should be granted only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When applying this standard, we review the pleadings and documentary evidence in the light most favorable to the party opposing summary judgment and determine whether any inference may be deduced in favor of the nonmoving party, thereby precluding summary judgment. Weir v. Anaconda Co., 773 F.2d 1073, 1079 (10th Cir.1985).
As mentioned, the district court determined that the class plaintiffs had not filed their discrimination charge with the EEOC within the limitations period and that the plaintiffs did not establish sufficient facts to toll the limitations period. Our review of the uncontested facts set out in detail in section III of this opinion lead us to conclude not only that summary judgment for Phillips was inappropriate on the tolling issue but that plaintiffs' motion on that issue should have been granted. Thus, we affirm the denial of Phillips' motion for summary judgment, not on the class representative issue but on equitable tolling grounds.
An individual bringing an ADEA action must file a charge with the EEOC "within 180 days after the alleged unlawful practice occurred." 29 U.S.C. Sec. 626(d)(1) (1982). The class plaintiffs filed a charge with the EEOC on March 2, 1983, 183 days after they were terminated on August 31, 1982. The district court determined that the accrual of the 180 days began on August 31 and thus ruled that the class plaintiffs' ADEA action was time barred. Plaintiffs claim that the limitations period began to run on September 9, 1982, because the transfer, reassignment, and layoff policy (the transfer policy) being attacked was a continuing violation that existed until September 9. Consequently, according to plainti...
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