Kale v. Combined Ins. Co. of America, s. 87-1277
| Citation | 861 F.2d 746 |
| Decision Date | 15 September 1988 |
| Docket Number | Nos. 87-1277,87-1278,s. 87-1277 |
| Parties | 48 Fair Empl.Prac.Cas. 563, 48 Empl. Prac. Dec. P 38,446, 12 Fed.R.Serv.3d 837 Carl KALE, Plaintiff, Appellant, v. COMBINED INSURANCE COMPANY OF AMERICA, Defendant, Appellee. Carl KALE, Plaintiff, Appellee, v. COMBINED INSURANCE COMPANY OF AMERICA, Defendant, Appellant. . Heard |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Philip R. Olenick with whom Paul L. Nevins, Boston, Mass., was on briefs for Carl Kale.
Kenneth M. Bello with whom Malcolm Russell-Einhorn and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Boston, Mass., were on brief for Combined Ins. Co. of America.
Before BOWNES and BREYER, Circuit Judges, and ATKINS, * Senior District Judge.
These consolidated appeals arise from an alleged violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621, 623. Plaintiff-appellant Carl Kale appeals the district court's entry of summary judgment in favor of defendant-appellee Combined Insurance Company of America (Combined) on his claim of age discrimination. In its cross-appeal, Combined appeals the court's denial of its motion for sanctions, including attorney's fees, under Fed.R.Civ.P. 11. Combined also asks for appellate sanctions under Fed.R.App.P. 38 and 28 U.S.C. Secs. 1912 & 1927.
We affirm both decisions of the district court and deny Combined's request for appellate sanctions. We write at length, however, because of the important issues of first impression that these appeals present for this circuit.
For over twenty years, Carl Kale was an accountant employed by Combined at its Brookline operation, known as the Hearthstone Division. Following more than two years of poor evaluations and warnings about the continued inadequacy of his work performance from his supervisors 1 (the legitimacy of these criticisms is hotly contested by the plaintiff), Kale received his unconditional release on May 11, 1983. At that time he was 52 years old.
For much of the year following his dismissal Kale sought other employment but did not pursue any legal action against Combined under the ADEA. He was unsuccessful in his attempt to locate work and now contends that all during that time he was still "reeling from the blow" of being fired by Combined. Plaintiff recovered from this emotional trauma on April 26, 1984, when he contacted his present counsel to determine whether he might have a claim of age discrimination against Combined. After deciding that Kale had such a claim, his counsel took the first step required by the ADEA and filed an age discrimination complaint with the Massachusetts Commission Against Discrimination (MCAD) on May 3, 1984. 2 Pursuant to the dual filing system that operates under the ADEA, there was a simultaneous filing of Kale's complaint with the Equal Employment Opportunity Commission (EEOC) on that same date. These filings occurred 357 days after the alleged discriminatory firing.
MCAD notified defendant by mail of the charges against it on May 9, 1984 and offered to conciliate the dispute. In order to process an age discrimination claim, however, the MCAD must receive the complaint within six months (180 days) of the alleged discriminatory act. Since Kale's filing was well beyond that date, MCAD promptly issued a letter of final disposition stating that it lacked jurisdiction over plaintiff's untimely complaint. 3 The EEOC, likewise, afforded Kale no relief. On September 19, 1984 it wrote to both parties declaring its intention not to prosecute an age discrimination claim against Combined.
Kale then filed the present suit in the federal district court in Massachusetts. Combined moved for summary judgment on the ground that plaintiff had lost his right to maintain a private action under the ADEA by not making a timely filing with the EEOC. It contended that since the ADEA mandates that such filing occur within 300 days of the alleged violation, see 29 U.S.C. Sec. 626(d)(2), plaintiff's complaint was lodged 57 days too late. Defendant also moved for sanctions and fees under Rule 11 due to Kale's continued prosecution of a procedurally time-barred, substantively frivolous claim.
Plaintiff opposed both of these motions. He alleged that although he had filed outside of the 300-day limit, his claim should still be heard because of equitable considerations. He argued that the 300-day filing period was akin to a statute of limitations and as such could be equitably tolled where a plaintiff was "excusably ignorant" of his rights. Kale further argued that Rule 11 sanctions were inappropriate since none of his contentions were either frivolous or made in bad faith.
The district court issued a memorandum and order granting Combined's motion for summary judgment but denying its motion for sanctions. The court determined that while the 300-day filing period might well be subject to equitable modification, plaintiff provided no evidence that could support such modification. Summary judgment was therefore granted.
In its analysis of defendant's motion for Rule 11 sanctions, the district court examined both the procedural and the substantive aspects of plaintiff's claim. As to the untimely filing issue, the court stated that although it did not find Kale's argument for equitable tolling convincing, the lack of First Circuit precedent on point allowed the plaintiff great leeway to argue that this circuit should take a more liberal view of the equitable tolling issue than had other courts. Turning to Kale's underlying claim, the court found that while plaintiff had been criticized for years concerning his poor work performance, that did not negate a possible finding of discriminatory intent regarding his dismissal. The court agreed with plaintiff that it was possible that the criticisms were unfounded and were being used as a pretext to cover-up a discriminatory firing. Based upon that hypothesis, the court ruled that Kale's claim was not so frivolous as to warrant Rule 11 sanctions.
Congress passed the ADEA in 1967 with the hope of ending age discrimination in the work place. See Dartt v. Shell Oil Co., 539 F.2d 1256, 1259-60 (10th Cir.1976), aff'd by an evenly divided Court, 434 U.S. 99, 98 S.Ct. 600, 54 L.Ed.2d 270 (1977). To that end, the statute authorized private suits to vindicate alleged age discrimination. To maintain a private action under the ADEA scheme, an aggrieved party must first file a complaint with the EEOC. This complaint must be filed within 300 days of the alleged act of discrimination or within 180 days in states having no law against age discrimination and no agency that is authorized to investigate such claims. 4 29 U.S.C. Secs. 626(d)(1), 626(d)(2) & 633(b). 5
Over the past fifteen years, many courts have considered whether the 300-day filing period is a "jurisdictional prerequisite" to maintaining a private suit or whether it is more like a statute of limitations, which may be modified in individual cases due to equitable concerns. See, e.g., Naton v. Bank of California, 649 F.2d 691, 695-96 (9th Cir.1981). Although this circuit has come close to deciding this issue a number of times, it has never been forced to definitively resolve it. See Earnhart v. Commonwealth of Puerto Rico, 691 F.2d 69, 72-73 & n. 1 (1st Cir.1982) (); Ciccone v. Textron, Inc., 616 F.2d 1216, 1218 n. 3, 1220 n. 7 (1st Cir.1980) (); Daughtry v. King's Department Stores, Inc., 608 F.2d 906, 909 (1st Cir.1979) (); Hadfield v. Mitre Corp., 562 F.2d 84, 87-88 (1st Cir.1977) (). 6
Because of the dearth of First Circuit cases on point, we find instructive the decisions of other circuits. Our sister circuits are in virtual unanimity in holding that the ADEA filing period is akin to a statute of limitations and is subject to equitable modification. See Dillman v. Combustion Engineering Corp., 784 F.2d 57, 59 (2d Cir.1986); McClinton v. Alabama By-Products Corp., 743 F.2d 1483, 1485 (11th Cir.1984); Vance v. Whirlpool Corp., 716 F.2d 1010, 1012 (4th Cir.1983), cert. denied, 465 U.S. 1102, 104 S.Ct. 1600, 80 L.Ed.2d 130 (1984); Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 594-95 (5th Cir.1981) (en banc); Nielsen v. Western Electric Co., Inc., 603 F.2d 741, 743 (8th Cir.1979); Naton v. Bank of California, 649 F.2d 691, 695-96 (9th Cir.1981); Wright v. State of Tennessee, 628 F.2d 949, 952-53 (6th Cir.1980) (en banc); Bonham v. Dresser Industries, Inc., 569 F.2d 187, 193 (3rd Cir.1977), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978); Kephart v. Institute of Gas Technology, 581 F.2d 1287, 1288-89 (7th Cir.1978); and Dartt, 539 F.2d at 1259-60.
These courts have based their holdings in part on the premise that:
The ADEA is remedial and humanitarian legislation and should be liberally interpreted to effectuate the congressional purpose of ending age discrimination in employment. Additionally, strict compliance with section 626(d)(1)'s time limitation should not be required of laymen attempting to enforce their statutory rights.
Dartt, 539 F.2d at 1260 (citations omitted); see also Skoglund v. Singer Co., 403 F.Supp. 797, 801 (D.N.H.1975) (). Congress has implicitly endorsed this view of the filing period. When the ADEA was amended in 1978, the "Joint Explanatory Statement of the Committee of Conference" stated:
The conferees agree that the "charge" requirement is not a jurisdictional prerequisite to maintaining an...
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