Schroeder v. Copley Newspaper

Decision Date12 July 1989
Docket NumberNo. 88-2621,88-2621
Citation879 F.2d 266
Parties50 Fair Empl.Prac.Cas. 447, 50 Empl. Prac. Dec. P 39,173, 58 USLW 2131 Thomas SCHROEDER, Plaintiff-Appellant, v. COPLEY NEWSPAPER, d/b/a Waukegan News-Sun, an Illinois Corporation, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Gregory X. Gorman, Robert J. Paul, H. Candace Gorman, Kenneth Goldberg, Gorman & Gorman, Chicago, Ill., for plaintiff-appellant.

James D. Fiffer, Patrica Mengler Whaley, Wildman, Harrold, Allen & Dixon, Chicago, Ill., for defendant-appellee.

Before CUDAHY, COFFEY and MANION, Circuit Judges.

MANION, Circuit Judge.

Plaintiff-appellant Thomas Schroeder appeals the district court's entry of summary judgment which held that Schroeder had failed to file a timely charge of age discrimination, and that no grounds existed to equitably toll the charge-filing period. The district court also dismissed Schroeder's pendent state law claim for lack of subject matter jurisdiction. We affirm.

I.

Because Schroeder appeals from a grant of summary judgment, we view the record and all inferences drawn from it in the light most favorable to Schroeder, the non-movant. Beard v. Whitley County REMC, 840 F.2d 405, 409-10 (7th Cir.1988). Copley-Newspaper ("Copley") terminated Schroeder on January 29, 1986; he was 59. On April 4, 1986, Copley terminated another employee, James Wallace, then age 58. Within weeks, Wallace contacted Schroeder and told him that he too had been discharged, and that Wallace believed both he and Schroeder had been unlawfully terminated because of their age. In June 1986, at Wallace's "urging," Schroeder (accompanied by Wallace) went "to the EEOC office in Chicago to file a charge of discrimination against [Copley]." (Schroeder affidavit, p 4)

At the EEOC, Gloria Mayfield interviewed Schroeder. (The district court described Mayfield as an "intake person"; but nothing in Schroeder's affidavit or the rest of the record identifies Mayfield.) After Schroeder provided Mayfield with all of the information she requested (the record does not reveal what this was) and following an interview, Mayfield informed Schroeder that "there wasn't much [that] she could do for [him]." (Schroeder affidavit, p 5) Schroeder left the EEOC, and has not succeeded in creating an issue of fact as to whether he filed a charge or completed an intake questionnaire.

Following Schroeder's visit to the EEOC, "a number of older employees were fired or forced to retire by [Copley]." (Schroeder affidavit, p 6) Schroeder learned that "[s]ome of those employees received settlements," and "realized that maybe the EEOC was wrong and [that he] did have a cause of action." (Id.) He then contacted an attorney and on November 19, 1987, filed a charge with the EEOC alleging that Copley had unlawfully discriminated against him on the basis of age.

Schroeder filed a two-count complaint on January 27, 1987. Count one alleged his discharge violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Secs. 621-634. Count two was a state law claim brought under the court's pendent jurisdiction for intentional infliction of emotional distress. Copley moved for summary judgment on Count one, arguing that Schroeder's charge was untimely, and moved to dismiss Count two for lack of subject matter jurisdiction in the event the district court granted summary judgment on the ADEA claim. Schroeder opposed the summary judgment motion, claiming first that he had filed a timely charge, and second, that even if he had not, the charge-filing period should have been tolled on account of the EEOC's refusal to accept his charge, and Copley's failure to post notices informing its employees of their rights under the ADEA.

The district court held that Schroeder had not filed a timely charge with the EEOC, and that, in any event, he had never (within the 300-day limitations period) manifested an intent to activate the ADEA's machinery. The court also found there was no basis to equitably toll the charge-filing period. Mayfield's comment that she didn't think there was much the EEOC could do for Schroeder, the court reasoned, did not amount to an "affirmative inducement" to forego filing a charge. Further, the court held, even if Copley's failure to post a notice informing its employees of their rights under the ADEA tolled the charge-filing period, it only tolled the period until May or June 1986, when Schroeder learned of his rights through Wallace. And because Schroeder did not file his charge until November 19, 1987, it still was untimely. The court also dismissed Schroeder's pendent claim for lack of subject matter jurisdiction. Schroeder appeals the district court's determinations that his charge was untimely and that no grounds existed to equitably toll the filing period. 691 F.Supp. 1127.

II.

We review the district court's entry of summary judgment de novo. Central States, Southeast and Southwest Areas Pension Fund v. Jordan, 873 F.2d 149, 152 (7th Cir.1989). Summary judgment is proper when no genuine issues of material fact exist and when the moving party is entitled to judgment as a matter of law. Id. The party bearing the burden of proof on a particular issue must "affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact which requires trial." Beard, 840 F.2d at 410. (Emphasis omitted.) This requires more than merely showing "there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.' " Id. at 587, 106 S.Ct. at 1356 (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)).

Under the ADEA "[n]o civil action may be commenced ... until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission." 29 U.S.C. Sec. 626(d). In a deferral state like Illinois, Smith v. General Scanning, Inc., 832 F.2d 96, 98 (7th Cir.1987), a charge must be filed within 300 days of the alleged unlawful practice. The charge-filing requirement ensures that the EEOC will have information sufficient to allow it to notify employers that they have been accused of unlawful discrimination. Steffen v. Meridian Life Insurance Co., 859 F.2d 534, 542 (7th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 3191, 105 L.Ed.2d 699 (1989). It also gives the EEOC an opportunity to investigate the allegations and to eliminate the unlawful practice (if that is what the EEOC's investigation uncovers) through conciliation, conference, and persuasion. Id. at 542 (collecting cases). For a charge to satisfy Sec. 626(d), the " 'notice to the EEOC must be of a kind that would convince a reasonable person that the grievant has manifested an intent to activate the [ADEA's] machinery.' " Steffen, 859 F.2d at 542 (quoting Bihler v. Singer, 710 F.2d 96, 99 (3d Cir.1983)). The Third Circuit explained, "[t]he efficient operation of the [EEOC] demands such notice" because "Congress certainly did not intend the [EEOC] to squander its resources by investigating where no complaint has been filed...." Bihler, 710 F.2d at 99. Also, to be sufficient a "charge shall be in writing and shall name the prospective respondent and shall generally allege the discriminatory act(s)." 29 C.F.R. Sec. 1626.6; see also 29 C.F.R. Sec. 1626.8(b); Steffen, 859 F.2d 542.

In Steffen, we held that a completed intake questionnaire satisfied the charge-filing requirement. It was in writing, named the respondent, and adequately alleged the discriminatory act (demotion). Id. at 542, 544. Further, Steffen had made known his intent to activate the ADEA's machinery by informing the EEOC of his intent to comply with the charge-filing requirement, and by following the EEOC's instructions on how to satisfy the requirement. Id. at 544. In Bihler, though, the Third Circuit held that an employee's letter to his former employer--with copies to the EEOC and the relevant state agencies--which alleged that the writer's termination "constituted age discrimination" and threatened litigation did not constitute a "charge" because it failed to notify the EEOC that the employee intended to activate the ADEA's machinery. Id. at 99-100. The aggrieved employee's letter "did not sufficiently inform the EEOC whether it was 'to investigate immediately or to await further communication from the plaintiff before investigation.' " Id. at 100 (citation omitted).

In this case, there was no timely written charge, and Schroeder has not produced a completed intake questionnaire. Compare Steffen. 1 There was not even an informal letter alleging discrimination and threatening litigation as in Bihler. Schroeder produced no facts indicating that he filed any written statement or that the information he provided Mayfield was ever reduced to writing (see infra note 2). Rather, from the record, all we know is that Schroeder set out for the EEOC's Chicago office intending to file a charge (though he never told the EEOC that that was his intent); he met with Mayfield (the "intake person"); he was told that there "wasn't much" the EEOC "could do for [him]"; and he left without any further activity. We do not know what information Schroeder gave to Mayfield (or, for that matter, who Mayfield was, or what position she held), or what Mayfield was referring to when she commented that there "wasn't much" that could be done. This, coupled with the absence of any timely written charge or intake questionnaire, compels the conclusion that not only was no charge timely filed, but also that no reasonable person would have been convinced that Schroeder intended to "activate the [ADEA's] machinery." Steffen, 859 F.2d at 542; see...

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