Burkely v. Martin's Super Markets, Inc., S89-231.

• Court: United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
• Writing for the Court: Marian C. Haney, Chicago, Ill., for defendant
• Citation: 741 F. Supp. 161
• Parties: Patricia S. BURKLEY, Plaintiff, v. MARTIN'S SUPER MARKETS, INC., Defendant.
• Docket Number: No. S89-231.,S89-231.
• Decision Date: 06 July 1990

741 F. Supp. 161

Patricia S. BURKLEY, Plaintiff,
v.
MARTIN'S SUPER MARKETS, INC., Defendant.

No. S89-231.

United States District Court, N.D. Indiana, South Bend Division.

July 6, 1990.

741 F. Supp. 162

Lance M. Clark, South Bend, Ind., for plaintiff.

Marian C. Haney, Chicago, Ill., for defendant.

MEMORANDUM AND ORDER

MILLER, District Judge.

Patricia Burkley filed this action on May 22, 1989 alleging that her former employer, Martin's Super Markets, Inc., violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., when it discharged her. Martin's moved to dismiss the complaint on the ground that Ms. Burkley's action was untimely. The court converted the motion to one for summary judgment. On May 1, 1990, the court heard argument on Martin's motion and stayed all further discovery in this matter and afforded both parties additional time within which to file supplementary materials in support of their positions. The second round of briefing has concluded. For the reasons that follow, the court concludes that while Ms. Burkley has demonstrated diligence in seeking to press her claim, Martin's is correct that her suit is untimely.

Ms. Burkley held the position of administrative assistant to Martin's president throughout her two-year tenure with Martin's. Ms. Burkley, who was forty years old when she was terminated on May 22, 1987, alleges that she was told her position was being eliminated. Soon after her termination though, Ms. Burkley claims that her former position (now under a different title) was filled by a younger person.

Ms. Burkley first contacted an attorney to discuss the legality of her discharge on September 8, 1987. She made this contact after speaking by telephone with someone at the Equal Employment Opportunity Commission ("EEOC"). An EEOC poster entitled "Equal Employment Opportunity is the Law" was displayed at the Martin's location where Ms. Burkley worked while she was employed. The EEOC notice was conspicuously and continually located on a bulletin board above the time clock in a hallway between the main office area and the employees' break room. This hallway apparently was frequented by all Martin's employees, including Ms. Burkley. The poster outlined employees' rights under various federal employment discrimination statutes, including the ADEA. There is, however, no direct evidence of Ms. Burkley's use of the information contained in the poster in contacting the EEOC or pursuing her claim.

Ms. Burkley's first attorney apparently initially agreed to take her case after meeting with her on September 16, 1987. On June 14, 1988, less than a year later, that attorney's firm withdrew as her counsel. Neither that first attorney nor any of his colleagues filed a charge of discrimination with the EEOC on behalf of Ms. Burkley. In a June 30, 1988 letter, Ms. Burkley's first attorney informed her that she should immediately seek substitute counsel in order to timely file a civil action within the two year statute of limitations period. Ms. Burkley then employed another attorney, who immediately informed her of the need to file a claim with the EEOC. Ms. Burkley herself accomplished this filing on August 16, 1988.

A party seeking summary judgment must demonstrate that no genuine issue of fact exists for trial and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(e); Hannon v. Turnage, 892 F.2d 653, 656 (7th Cir.1990). If that showing is made and the motion's opponent would bear the burden at trial on the matter that forms the basis of the motion, the opponent must come forth with evidence to show what facts are in actual dispute. Celotex

741 F. Supp. 163

Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Whetstine v. Gates Rubber Co., 895 F.2d 388, 392 (7th Cir.1990). If he fails to do so, summary judgment is proper. National Diamond Syndicate, Inc. v. UPS, 897 F.2d 253, 260 (7th Cir.1990). A genuine factual issue exists only when there is sufficient evidence for a jury to return a verdict for the motion's opponent. Santiago v. Lane, 894 F.2d 218, 221 (7th Cir.1990). Summary judgment should be granted if no reasonable jury could return a verdict for the motion's opponent. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Krist v. Eli Lilly and Co., 897 F.2d 293, 296 (7th Cir.1990)

The parties cannot rest on mere allegations in the pleadings, Koclanakis v. Merrimack Mut. Fire Ins. Co., 899 F.2d 673, 675 (7th Cir.1990), or upon conclusory allegations in affidavits. Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir.1989). The court must draw any permissible inferences from the materials before...