Daugherity v. Traylor Bros., Inc.

• Decision Date: 06 August 1992
• Docket Number: No. 90-2096,90-2096
• Citation: 970 F.2d 348
• Parties: 59 Fair Empl.Prac.Cas. (BNA) 905, 59 Empl. Prac. Dec. P 41,675, 23 Fed.R.Serv.3d 550 Gilbert H. DAUGHERITY, Plaintiff-Appellant, v. TRAYLOR BROTHERS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 348

970 F.2d 348

59 Fair Empl.Prac.Cas. (BNA) 905,

59 Empl. Prac. Dec. P 41,675, 23 Fed.R.Serv.3d 550

Gilbert H. DAUGHERITY, Plaintiff-Appellant, v. TRAYLOR BROTHERS, INC., Defendant-Appellee.

No. 90-2096.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 29, 1991.

Decided Aug. 6, 1992.

John T. Gabrielides (argued), Laff, Whitesel, Conte & Saret, Chicago, Ill., for plaintiff-appellant.

Carl A. Heldt (argued), Lacey, Terrell, Annakin, Heldt & Baugh, Evansville, Ind., for defendant-appellee.

Before COFFEY and RIPPLE, Circuit Judges, and WISDOM, Senior Circuit Judge. ^*

RIPPLE, Circuit Judge.

Gilbert Daugherity was laid off by Traylor Brothers, Inc. (Traylor) from his job as a carpenter tender. Believing that this adverse employment action was based on his age, Mr. Daugherity filed suit against Traylor under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. The district court granted Traylor's motion for summary judgment on the ground that Mr. Daugherity failed to exhaust administrative remedies. For the following reasons, we affirm.

I BACKGROUND

A. Facts

On September 12, 1985, Traylor hired Mr. Daugherity as a carpenter tender for the construction of Lincoln High School in Vincennes, Indiana. Mr. Daugherity was one of two carpenter tenders assigned to a six-person work crew. At age 60, Mr. Daugherity was the oldest person in his work crew. Because Mr. Daugherity was a union member, the terms of his employment were those set forth in the union's contract with Traylor. On December 31, 1985, Traylor reduced its labor force at Lincoln High School and laid off Mr. Daugherity. Traylor's superintendent for the Lincoln High School Project, Duard Grove, testified that Traylor laid off Mr. Daugherity and retained the other carpenter tender because Mr. Daugherity "was clearly the least productive of the two carpenters." R.12 at 1. However, Mr. Daugherity believed that he was laid off because he was the older of the two carpenter tenders. On January 6, 1986, Mr. Daugherity informed the union's business agent that he intended to file an age discrimination suit in federal court. On February 6, 1986, Mr. Daugherity filed a grievance against the two union members on the job site, the foreman and steward, who he believed failed to protect his rights under the union contract.

B. District Court Proceedings

On February 28, 1986, Mr. Daugherity filed pro se a complaint against Traylor in the United States District Court for the Southern District of Indiana, Terre Haute Division. Mr. Daugherity alleged in his complaint that Traylor violated the ADEA by discharging him because of his age. On April 16, 1986, Traylor filed (1) an answer denying the substantive allegations of Mr. Daugherity's complaint and (2) a motion to transfer the case from the Terre Haute Division to the Evansville Division for the reason that Evansville was no less convenient than Terre Haute for Mr. Daugherity and much more convenient for Traylor, because Traylor has its corporate office and attorneys in Evansville.

On April 23, 1986, before the court ruled on the motion to transfer, Daugherity filed a motion for summary judgment, claiming that Traylor "fail[ed] to show any proper defense." In his supporting memorandum, Daugherity alleged that Traylor hired two general laborers after he was fired on December 30th, although he did not specifically allege that they were younger than he. Traylor responded with an affidavit from Daugherity's supervisor which claimed that On June 13, 1986, Daugherity filed a "Motion for Hearing" in which he requested a hearing on his pending motions before the court. However, for the next two years and seven months, the case lay dormant in Terre Haute; there were no docket entries from June 13, 1986 to January 12, 1989. Finally, on January 12, 1989, the court granted Traylor's motion to transfer the case to the Evansville Division. Following a pre-trial conference, the Magistrate Judge in Evansville appointed counsel to represent Mr. Daugherity. On February 24, 1989, counsel entered an appearance on behalf of Mr. Daugherity. The case was set for trial and a pretrial preparation schedule was established. ¹

a general reduction in force was necessary and that Mr. Daugherity was fired because he was the less productive of the two carpenter tenders on the job site.

On October 18, 1989, Traylor filed a motion for leave to amend its answer to include an additional defense, which Traylor alleged had come to its attention only recently: that Mr. Daugherity failed to file a charge with the EEOC within 180 days of the layoff, as required by 29 U.S.C. § 626(d). ² Mr. Daugherity objected to this amendment on the ground that more than three and one-half years had passed since Traylor filed its original answer. ³ On November 22, 1989, the court granted Traylor's motion to amend its complaint.

One week later, Traylor filed a motion for summary judgment in which it argued that the court should grant summary judgment either because Mr. Daugherity failed to file the requisite administrative claims, or because there was no genuine issue of material fact and Mr. Daugherity's claim was meritless. Mr. Daugherity opposed the motion on the ground that he was unaware of the administrative filing requirement because Traylor failed to post a notice of his rights and the filing requirements under the ADEA. He asked the court to toll equitably the administrative notice requirement to allow him to file the requisite administrative claims. In support, Mr. Daugherity relied upon this court's decision in Kephart v. Institute of Gas Technology, 581 F.2d 1287 (7th Cir.1978), and filed an affidavit in which he asserted that he "[did] not recall ever seeing a sign or any other notice informing him or his fellow workers about age discrimination claim procedures which must be followed." R.35 Ex.A. Mr. Daugherity did not respond to Traylor's challenge to the merits of his claim, nor did Mr. Daugherity seek a stay to allow further discovery.

On April 23, 1990, the district court granted Traylor's motion for summary judgment. In an accompanying memorandum opinion, the court explained that it granted Traylor's motion because it did not find that Mr. Daugherity's affidavit was sufficient to create a genuine issue as to whether Traylor posted notice of age discrimination procedures. Absent a genuine issue as to notice, and absent any evidence that Mr. Daugherity filed an administrative claim, the court found that Mr. Daugherity had failed to exhaust the administrative remedy required by 29 U.S.C. § 626(d). The court did not address the merits of Mr. Daugherity's age discrimination claim. Following the entry of this judgment, Mr. Daugherity was once again without the assistance of counsel. Nevertheless, Mr. Daugherity filed pro se a timely notice of appeal. After preliminary consideration of the case on the submitted briefs, this court appointed counsel for Mr. Daugherity and set the case for hearing.

II ANALYSIS

On appeal, Mr. Daugherity makes two challenges to the district court's decisions. ⁴ First, Mr. Daugherity contends that the court abused its discretion in allowing Traylor to amend its answer three and one-half years after it was filed originally. Second, Mr. Daugherity submits that the district court erred in refusing to find a genuine issue of material fact as to whether Traylor posted notice of procedures for age discrimination claims at the Lincoln High School job site. We also address the merits of Mr. Daugherity's claim in order to determine whether alternate grounds exist to support the district court's judgment.

A. Traylor's Motion to Amend its Answer

1. Relevant standards

Federal Rule of Civil Procedure 15(a) provides that a party may amend its pleading by leave of the court, and such "leave shall be freely given when justice so requires." While this court has noted that "leave will generally be given," Amendola v. Bayer, 907 F.2d 760, 764 (7th Cir.1990), we have also noted that leave to amend is " 'inappropriate where there is undue delay, bad faith, dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of the amendment.' " Perrian v. O'Grady, 958 F.2d 192, 194 (7th Cir.1992) (quoting Villa v. City of Chicago, 924 F.2d 629, 632 (7th Cir.1991)). The assessment whether there is undue delay or undue prejudice, as well as the ultimate decision to grant or deny leave to amend, is within the district court's discretion. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 801, 28 L.Ed.2d 77 (1971); Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); J.D. Marshall Int'l, Inc. v. Redstart, Inc., 935 F.2d 815, 819 (7th Cir.1991). We shall overturn the district court's judgment on this issue only if Mr. Daugherity establishes that the court abused its discretion.

2. Applied to this case

Mr. Daugherity argues that the district court abused its discretion when, despite Traylor's undue delay and the potential prejudice to Mr. Daugherity's claim, it granted Traylor's motion for leave to amend. Beginning with undue delay, ⁵ Mr Daugherity argues that the three and one-half year delay between the filing of Traylor's original answer and the filing of Traylor's motion to amend is excessive and unexcused. While Traylor offered to "show to the Court that the grounds for said additional defense have only recently come to the attention of defense counsel," R. 25, no such showing was ever made to the district court. Mr. Daugherity also notes that Traylor employs an equal employment opportunity compliance officer who maintains records and correspondence regarding age discrimination claims made against Traylor. R. 31 at 3. With such awareness of EEOC requirements, Daugherity argues, it is unreasonable for Traylor to ask the court to...