Barnes v. Hillhaven Rehab. & Convalescent Center

• Citation: 686 F. Supp. 311
• Decision Date: 15 February 1988
• Docket Number: Civ. No. 1:87-cv-619-ODE.
• Parties: Romaine BARNES v. HILLHAVEN REHABILITATION & CONVALESCENT CENTER.
• Court: U.S. District Court — Northern District of Georgia

686 F. Supp. 311

Romaine BARNES
v.
HILLHAVEN REHABILITATION & CONVALESCENT CENTER.

Civ. No. 1:87-cv-619-ODE.

United States District Court, N.D. Georgia, Atlanta Division.

February 15, 1988.

686 F. Supp. 312

Robert C.D. McDonald, Norcross, Ga., for plaintiff.

Gary R. Kessler, David L. Gordon, Jackson, Lewis, Schnitzler & Krupman, Atlanta, Ga., for defendant.

ORDER

ORINDA D. EVANS, District Judge.

This ADEA action is before the court on Defendant's motion for summary judgment and for an extension of time in which to file a reply brief. As no opposition has been filed to the motion for an extension of time, said motion is granted nunc pro tunc.

Plaintiff Romaine Barnes alleges that her former employer, Hillhaven Rehabilitation and Convalescent Center ("Hillhaven"), discriminated against her on the basis of her age when she was forced to resign as administrator at Hillhaven's Marietta facility in April, 1986. Mrs. Barnes was 59 years old at the time she left Hillhaven and she had worked as administrator at the Marietta facility since 1969.

Defendant Hillhaven has moved for summary judgment on the basis that Mrs. Barnes did not timely file her charge of age discrimination with the EEOC. In order to file an age discrimination action, a plaintiff must first file an EEOC charge within 180 days of the alleged discriminatory action pursuant to 29 U.S.C. § 626(d)(1). This requirement is a condition precedent to an ADEA action so that the failure to timely file an EEOC charge does not deprive the court of jurisdiction. Jackson v. Seaboard Coast Line Railroad Company, 678 F.2d 992 (11th Cir.1982). Plaintiff contends that the EEOC charge was timely filed and that even if it were not, the filing period is subject to equitable tolling.

The 180 day filing period begins to run from the date the adverse employment decision is communicated to the employee. Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980); Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981). The filing period begins to run once the employee has been notified of the employment decision even though the decision might not yet take effect. Ricks, supra. As another court has noted, the "proper focus under the Ricks rationale is on the time of the act of discrimination and not when the consequences of that act become most painful." Clark v. Resistoflex Company, 665 F.Supp. 1216, 1219 (M.D.La.1987), citing Ricks, supra, 449 U.S. at 258, 101 S.Ct. at 504.

The record reflects the following facts regarding the date Mrs. Barnes had notice of Hillhaven's decision that she must resign or face termination. Prior to April 4, 1986, Mrs. Barnes' superiors had discussed their dissatisfaction with Mrs. Barnes because of operational problems at the Marietta facility. Gary Witte, Hillhaven Vice President of Operations for the Southeast Region, attests that he and his immediate superior, Dan Mosca, Senior Vice President for the Southern Division, had decided in March 1986 that Mrs. Barnes should leave as administrator of the Marietta facility. Shortly before April 4, 1986, Witte learned that Mrs. Barnes' son, Jim Barnes, who

686 F. Supp. 313

was employed as the housekeeping supervisor at the Marietta facility, had been arrested for cocaine distribution. Mrs. Barnes had not informed her immediate supervisor, Dick Ebersole, District Director, of this fact nor had she suspended her son. Dan Mosca attests that when he learned that Jim Barnes had been arrested, was still working at the facility and Mrs. Barnes had not informed any Hillhaven management, Mosca instructed Witte to visit the Marietta facility and tell Mrs. Barnes that "it was no longer in Hillhaven's best interests for her to remain as administrator at the Marietta facility." As Witte was unable to go to Marietta, Dick Ebersole travelled to Marietta on April 4, 1986 to meet with Mrs. Barnes. Ebersole attests that Witte instructed him to try to persuade Mrs. Barnes to retire or resign and if she refused, to terminate her

Ebersole met with Mrs. Barnes for 10 to 15 minutes late in the day on Friday, April 4, 1986. Ebersole states that he told her about the operational problems at the facility and the problem with her son. Mrs. Barnes testified in her deposition that she does not recall discussion of operational problems at the facility, although she does recall discussing her son's arrest and subsequent return to work. Ebersole offered Plaintiff the choice between resigning and being fired. As Mrs....