Beckel v. Wal-Mart Associates, Inc.

Decision Date29 August 2002
Docket NumberNo. 02-1208.,02-1208.
Citation301 F.3d 621
PartiesStephanie BECKEL, Plaintiff-Appellant, v. WAL-MART ASSOCIATES, INC., Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Henry P. Villani (Argued), Mt. Vernon, IL, for Plaintiff-Appellant.

Charles E. Reis, IV (Argued), Brown & James, St. Louis, MO, for Defendant-Appellee.

Before POSNER, RIPPLE, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge.

The plaintiff appeals from the grant of summary judgment to her former employer, arguing only that the defendant should have been equitably estopped to plead the bar of the statute of limitations to her Title VII suit for sexual harassment. The doctrine of equitable estoppel, when invoked as a defense to the statute of limitations, requires the plaintiff to show that the defendant took steps deliberately to prevent the plaintiff from bringing a timely suit, whether by concealing the existence of the plaintiff's claim or by promising not to plead the statute of limitations. Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 235, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959); Hedrich v. Board of Regents, 274 F.3d 1174, 1182 (7th Cir. 2001); Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450-52 (7th Cir.1990); Smith-Haynie v. District of Columbia, 155 F.3d 575, 580-81 (D.C.Cir.1998). Which shows, by the way, that the doctrine is not, as argued by Wal-Mart's lawyer, a synonym for fraudulent concealment. A promise not to plead the statute of limitations is a common basis for equitable estoppel even if the promise, though later broken, was honestly intended when made, so that there is no element of fraud or concealment. Singletary v. Continental Illinois Nat'l Bank & Trust Co., 9 F.3d 1236, 1241 (7th Cir.1993); Cange v. Stotler & Co., 826 F.2d 581, 587 (7th Cir.1987); cf. Kosakow v. New Rochelle Radiology Associates, 274 F.3d 706, 726 (2d Cir.2001).

When the plaintiff, who worked as a loss-prevention associate at a Wal-Mart distribution center, complained to her superiors that her immediate supervisor was harassing her sexually, the center's general manager told her not to discuss her allegations with anyone other than himself and the center's other management-level employees. She understood this to mean that she could not hire a lawyer or file a complaint with the EEOC without jeopardizing her employment, and as a result she delayed filing her complaint until she was fired (for what the company claims were unrelated reasons). The consequence of the delay was that the complaint was filed more than 300 days after her claim of harassment accrued and so was untimely; and the filing of a timely administrative complaint is a prerequisite to suit. 42 U.S.C. § 2000e-5(e). She argues that the implicit and effective threat to retaliate against her if she took legal action should estop the company to plead the statute of limitations.

If the employer merely orders the employee not to talk to anyone except the employer's managers about her allegation of sexual harassment, and she misunderstands this to mean that talking to a lawyer or filing an administrative complaint or a lawsuit would be considered employee misconduct and jeopardize her job, there is no basis for finding equitable estoppel unless the employer phrases the order in a way calculated to mislead a reasonable person. See Teamsters & Employers Welfare Trust of Illinois v. Gorman Bros. Ready Mix, 283 F.3d 877, 882-84 (7th Cir.2002); Mull v. ARCO Durethene Plastics, Inc., 784 F.2d 284, 292 (7th Cir.1986); Smith-Haynie v. District of Columbia, supra, 155 F.3d at 581. For an employer has a right to take steps to prevent an employee from spreading what may be groundless rumors concerning improper conduct by another employee. Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109, 1118 (7th Cir.2001); Matima v. Celli, 228 F.3d 68, 79 (2d Cir.2000); Felty v. Graves-Humphreys Co., 785 F.2d 516, 519 (1986), aff'd after remand, 818 F.2d 1126 (4th Cir.1987); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (EEOC June 18, 1999), EEOC Compliance Manual (CCH) § 615, ¶ 3116, p. 3257.

We have described the threat of retaliation as implicit but the plaintiff also claims that at the same meeting the general manager told her, in the words of her affidavit, "that my employment would be terminated if I disclosed the incident to anyone other than management." This allegation, however, cannot be credited, because of its inconsistency with her deposition, where, when asked whether she remembered "anything else" that had been said to her at the meeting, she replied "no." Affidavits, though signed under oath by the affiant, are typically and here written by the affiant's lawyer, and when offered to contradict the affiant's deposition are so lacking in credibility as to be entitled to zero weight in summary judgment proceedings unless the affiant gives a plausible explanation for the discrepancy. Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 806-07, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999); Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir.1995); Hackman v. Valley Fair, 932 F.2d 239, 241 (3d Cir. 1991). The explanation, moreover, must come in the affidavit itself, see Miller v. A.H. Robins Co., 766 F.2d 1102, 1104-05 (7th Cir.1985); Babrocky v. Jewel Food Co., 773 F.2d 857, 861-62 (7th Cir.1985); Colantuoni v. Alfred Calcagni & Sons, 44 F.3d 1, 4-5 (1st Cir.1994); Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365 (8th Cir.1983), not in a lawyer's musings, see EEOC v. United Parcel Service, 94 F.3d 314, 316 n. 2 (7th Cir.1996), which are not evidence. See Campania Management Co. v. Rooks, Pitts & Poust, 290 F.3d 843, 852-53 (7th Cir.2002); In re Morris Paint & Varnish Co., 773 F.2d 130, 134 (7th Cir.1985); Wood ex rel. United States v. American Institute in Taiwan, 286 F.3d 526, 534 (D.C.Cir.2002).

The plaintiff's affidavit, filed a suspiciously long seven months after the deposition, offers no reason for the discrepancy. Her lawyer argues that "the reason it [the threat to terminate her] was not mentioned in her deposition was because it was never addressed by Wal-Mart's counsel during the deposition." The argument is entitled to no weight because it is just a lawyer's unsworn argument, not the affiant's testimony (or testimonial equivalent) under oath. It is also a very poor argument, since he was present at his client's deposition and could have asked her about the threat; and if it was apparent that she was having memory problems, he could even have asked her leading questions about it. Fed.R.Evid. 611(c) and Note of Advisory Committee; Roberson v. United States, 249 F.2d 737, 742 (5th Cir.1957); 3 Wigmore on Evidence §...

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