Biester v. Midwest Health Services, Inc., 94-3345

• Citation: 77 F.3d 1264
• Decision Date: 26 February 1996
• Docket Number: No. 94-3345,94-3345
• Parties: 70 Fair Empl.Prac.Cas. (BNA) 397, 68 Empl. Prac. Dec. P 44,035 Steven W. BIESTER, Plaintiff-Appellant, v. MIDWEST HEALTH SERVICES, INC., James A. Klausman, Floyd C. Eaton, Jr., Deidre G. Klausman, and Virginia I. Eaton, Defendant-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1264

77 F.3d 1264

70 Fair Empl.Prac.Cas. (BNA) 397,

68 Empl. Prac. Dec. P 44,035

Steven W. BIESTER, Plaintiff-Appellant, v. MIDWEST HEALTH SERVICES, INC., James A. Klausman, Floyd C.

Eaton, Jr., Deidre G. Klausman, and Virginia I.

Eaton, Defendant-Appellees.

No. 94-3345.

United States Court of Appeals, Tenth Circuit.

Feb. 26, 1996.

Appeal from the United States District Court for the District of Kansas (D.C. No. 94-2034-GTV).

Dale L. Ingram of Jolley, Walsh & Hager, P.C. Kansas City, Missouri, for Plaintiff-Appellant.

Ryan E. Karaim of Franke & Schultz, P.C. Kansas City, Missouri, for Defendant-Appellees.

Before EBEL and LOGAN, Circuit Judges, and HOLMES, District Judge. ^*

HOLMES, District Judge.

Steven W. Biester appeals from the district court's grant of summary judgment to Midwest Health Services, Inc. ("Midwest"), his former employer. In the underlying lawsuit, Mr. Biester alleges that he was sexually harassed by his supervisor at Midwest. He brings this claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.

Midwest moved to dismiss Mr. Biester's lawsuit for failure to bring suit within 90 days after he received a right to sue letter from the Equal Employment Opportunity Commission ("EEOC"). Title VII imposes this 90-day time limitation upon prospective plaintiffs. 42 U.S.C. § 2000e-5(f)(1). In its motion, Midwest asserts that Mr. Biester received the right to sue notice on October 22, 1993, but that he did not file his lawsuit until January 26, 1994, five days after the expiration of the 90-day period prescribed by Title VII. Mr. Biester responds that his mental incapacity tolled the statute of limitations for a sufficient number of days such that the actual commencement of the lawsuit was timely.

Initially, the district court treated Midwest's motion as a motion for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Then, because the parties submitted materials outside of the pleadings, the district court properly converted the motion into a motion for summary judgment under Fed.R.Civ.P. 56. Accordingly, the district court allowed the parties reasonable opportunity to present additional pertinent material.

Ultimately, the district court granted summary judgment to Midwest, holding that no basis upon which to toll the 90-day limitations period existed in this case. First, Mr. Biester argues to this Court that the district court erred when it refused to toll the limitations period. Second, he argues that the district court applied the wrong standard to Midwest's summary judgment motion and improperly drew adverse inferences from the evidence.

We affirm.

I.

Summary judgment is appropriate where "there is no genuine issue as to any material fact," Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Windon Third Oil & Gas Drilling Partnership v. Federal Deposit Insurance Corp., 805 F.2d 342, 345 (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987), and "the moving party is entitled to judgment as a matter of law," Fed.R.Civ.P. 56(c). In Celotex, the Supreme Court stated:

[t]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.

477 U.S. at 322, 106 S.Ct. at 2552.

A party opposing a properly supported motion for summary judgment must offer evidence, in admissible form, of specific facts, Fed.R.Civ.P. 56(e), sufficient to raise a "genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) ("the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment"). "Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S.Ct. at 2510.

Summary judgment is only appropriate if "there is [not] sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id. at 249, 106 S.Ct. at 2511. The Supreme Court stated:

[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.

Id. at 252, 106 S.Ct. at 2512. Thus, to defeat a summary judgment motion, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Anderson, 477 U.S. at 249, 106 S.Ct. at 2511 ("there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." (citations omitted)).

In essence, the inquiry for the Court is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2512. In its review, the Court construes the record in the light most favorable to the party opposing summary judgment. Boren v. Southwestern Bell Tel. Co., 933 F.2d 891, 892 (10th Cir.1991).

This Court reviews the summary judgment determination of a district court de novo. Housing Authority v. United States, 980 F.2d 624, 628 (10th Cir.1992).

II.

Midwest employed Mr. Biester at its Fairlawn Heights facility from approximately December 24, 1992 through May 17, 1993. Mr. Biester alleges that his female supervisor sexually harassed him from January 1993 until March 30, 1993. Mr. Biester subsequently filed a complaint with the Kansas Commission on Human Rights. That agency forwarded the complaint to the EEOC for dual filing.

On three different occasions throughout April and May 1993, Mr. Biester was hospitalized at a psychiatric care facility with a principal diagnosis of major depression. He received outpatient treatment until late May 1993. On or about June 1, 1993, Mr. Biester moved into the residence of his former spouse, Susan V. Biester. By affidavit, Ms. Biester states that Mr. Biester "had absolutely no concept of time, date, or day" during this period. Ms. Biester also testified about a setback suffered by Mr. Biester when he was not selected for a job, allegedly because of his lawsuit against his former employer. Ms. Biester believes that her former husband's "pattern of behavior" continued until approximately mid-December. Dr. William A. O'Connor, Mr. Biester's psychiatric expert, opined that "Mr. Biester continued to suffer depression through the winter of 1993 with classic symptomology of time disorientation, fatigue, memory loss, and impaired judgment to time, future events and consequences."

On September 21, 1993, Mr. Biester requested a right to sue notice from the EEOC. Mr. Biester's attorney sent a letter to the EEOC on September 29, 1993, asking that the notice be sent directly to him. On October 12, 1993, the EEOC mailed a right to sue notice to Mr. Biester, via certified mail. The EEOC failed to send a notice to Mr. Biester's attorney.

Mr. Biester recalls receiving two or three notices informing him that he had a certified letter at the post office. He further recalls picking up the letter, but he does not remember the date. He also recalls delivering the letter to his attorney by hand on some unknown date. Mr. Biester's attorney, Dale L. Ingram, submitted an affidavit in which he stated that Mr. Biester told him "explicitly or implicitly" that Mr. Biester received the notice on October 30, 1993. However, Postal Service records reflect that the notice was retrieved by Mr. Biester on October 22, 1993. The notice informed him that he had 90 days to bring any desired civil action. Mr. Biester filed his complaint in the instant lawsuit on January 26, 1994, which is within the 90-day period if he received the notice on October 30, 1993, but outside the time limit if the notice was received on October 22, 1993.

III.

The facts material to the resolution of Mr. Biester's appeal are not in dispute. Midwest has presented competent evidence that Mr. Biester received the EEOC notice on October 22, 1993. Although Mr. Biester previously told his attorney that he received the notice on October 30, 1993, no evidence substantiating Mr. Biester's previous statement has been submitted. Further, Mr. Biester now states that he does not know when he received the notice. Finally, Midwest does not dispute the fact that Mr. Biester was diagnosed with major depression and experienced the attendant symptoms through December 1993. Therefore, the Court accepts these facts as true. No genuine issues of material fact remain to be determined before summary judgment can be entered.

The first legal issue for the Court is whether, under the circumstances presented by this case, Mr. Biester's mental illness tolled the applicable statute of limitations such that he commenced his lawsuit in a timely manner.

The Title VII provision at issue states that "a civil action may be brought against the respondent named in the charge" within 90 days after the issuance of a right to sue notice. 42 U.S.C. § 2000e-5(f)(1). The 90-day period for filing suit generally commences on the date that the complainant actually receives the EEOC right to sue notice. Williams v. Southern Union Gas. Co., 529 F.2d 483, 487 (10th Cir.), cert. denied, 429 U.S. 959, 97 S.Ct. 381, 50 L.Ed.2d 325 (1976).

It is well settled that the 90-day period for filing a civil lawsuit after final disposition of a complaint by the EEOC is "a requirement that, like a statute of limitations, is...