Cada v. Baxter Healthcare Corp., No. 90-1888

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore WOOD, Jr., POSNER and EASTERBROOK; POSNER
Citation920 F.2d 446
Docket NumberNo. 90-1888
Decision Date17 January 1991
Parties54 Fair Empl.Prac.Cas. 961, 55 Empl. Prac. Dec. P 40,424, 59 USLW 2411 Joseph F. CADA, Plaintiff-Appellant, v. BAXTER HEALTHCARE CORPORATION, Defendant-Appellee.

Page 446

920 F.2d 446
54 Fair Empl.Prac.Cas. 961,
55 Empl. Prac. Dec. P 40,424, 59 USLW 2411
Joseph F. CADA, Plaintiff-Appellant,
v.
BAXTER HEALTHCARE CORPORATION, Defendant-Appellee.
No. 90-1888.
United States Court of Appeals,
Seventh Circuit.
Argued Oct. 31, 1990.
Decided Dec. 13, 1990.
Rehearing Denied Jan. 17, 1991.

Page 448

John A. Cook and Mercedes Matias, Hough, Cook, Weatherhead & Kinsella, Chicago, Ill., for plaintiff-appellant.

David J. Parsons, Dana S. Connell, and Kathryn A. Mrkonich, Wildman, Harrold, Allen & Dixon, Chicago, Ill., for defendant-appellee.

Before WOOD, Jr., POSNER and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

The plaintiff, Joseph Cada, complains that the defendant, Baxter Healthcare, fired him in violation of the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621 et seq. The district court granted summary judgment for the defendant on the ground that the suit was time-barred, and dismissed the suit. The appeal presents fascinating and important questions regarding statutes of limitations generally and the age discrimination statute of limitations in particular.

Cada was the manager of Baxter's "creative services" department, the principal function of which was to produce the catalog of the company's drug products (the "armamentarium," as such catalogs are known). On the catalog project Cada reported to Jim Becks, the company's director of sales and marketing, although in all other respects he reported to Jim Stauner, the vice president for marketing. In April 1987 Becks was promoted to vice president for business planning and development but retained supervisory authority over the catalog project. The project was chronically behind schedule and over budget, and shortly after his promotion Becks asked Cada for a comprehensive report. Armed with this report Becks discussed the project with the company's president and the other vice presidents in a series of meetings late in April. They decided that the department should be reorganized to emphasize more aggressive tactics for marketing Baxter's products and that Cada was not the man to head up the reorganized department. On May 5 Becks met with Cada to inform him that the department would be reorganized and that he assumed Cada would be retiring because he was approaching 65. When Cada responded that he was not planning to retire,

Page 449

Becks told him that in that event he would be terminated about two weeks after a new manager for the department was hired, probably in July. Cada claims that he did not believe Becks had the authority to fire him and was even unsure whether Becks was attempting to fire him, as distinct from urging him to take early retirement.

Right after the meeting with Becks, Cada did two things. He went to the company's human resources department and obtained a packet of outplacement and benefit forms, which he filled out a few days later. And he tried to see Stauner, whom he considered his real supervisor. Stauner was unavailable and it was not till May 22 that they were able to meet. At that meeting Stauner told him that the decision to fire Cada had been made by Becks and that he, Stauner, could do nothing about it. On July 7 Cada's replacement appeared. She was a young woman. Three weeks after she started work, Cada was terminated. He filed his complaint with the Equal Employment Opportunity Commission on March 4, 1988, which was more than 300 days after his meeting with Becks on May 5, 1987, but less than 300 days after his meeting with Stauner on May 22. The administrative statute of limitations in the age discrimination law is 300 days for cases filed in Illinois. Davidson v. Board of Governors, 920 F.2d 441, 442 (7th Cir.1990).

In Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), the question was whether a cause of action for discrimination accrued when the plaintiff was denied tenure, allegedly on discriminatory grounds, or when his employment contract expired a year later; the Court held that it was the former. Baxter argues that, similarly, the date on which Cada was told he was terminated--May 5--was the date on which the statute of limitations started to run, not May 22 when the termination was confirmed by Stauner, or the end of July when Cada actually left Baxter's employ. Against this argument, which persuaded the district judge, Cada hurls a barrage of counterarguments: that Becks had no authority to fire Cada, so there was no adverse personnel action on May 5--the decision to terminate was made by Stauner on May 22 when he met with Cada; that whatever Becks's actual authority, Cada sincerely and reasonably believed that Becks was not authorized to fire him; and that not until Cada learned that his replacement was young and relatively inexperienced did he realize he was a victim of age discrimination, so the statute of limitations did not begin to run until then (July 7).

To Cada's point about Becks's authority to fire him on May 5, Baxter's first reply is that all that matters is that a reasonable person in Cada's position would have thought he was being fired. This cannot be right. Suppose someone had forged a letter from Becks to Cada, announcing that Cada was fired, which Cada received on May 1. Would the statute of limitations have begun to run on May 1? Surely no, though at argument Baxter's counsel said yes. Or suppose a year earlier Cada had gone to a fortune teller, who had gazed into her crystal ball and there seen Cada drawing unemployment benefits. Would the statute of limitations have begun to run on that day? Again the answer is no. The statute of limitations does not begin to run until the defendant takes some action, whatever the plaintiff knows or thinks. Ricks does not hold that the statute of limitations begins to run as soon as the handwriting is on the wall. The point was not that when Ricks was denied tenure he knew his days were numbered. The point was that the denial of tenure was an adverse personnel action forbidden if done for discriminatory reasons; it was irrelevant that the full consequences of the action were not felt till later, when Ricks, unprotected by tenure, was let go upon the expiration of his employment contract. In our forged-letter and crystal-ball cases the employee learned his fate before any adverse personnel action was taken, and until it is taken his claim has not accrued and the statute of limitations has not begun to run. Compare In re UNR Industries, Inc., 725 F.2d 1111, 1119 (7th Cir.1984).

So if Becks was merely telling Cada that he had better take early retirement because

Page 450

he, Becks, was going to advise Stauner, Cada's direct superior, to fire him, then no adverse personnel action was taken at the May 5 meeting and the statute of limitations did not begin to run then, any more than it would have begun to run in Ricks if and when a faculty member had told Ricks a month before the vote on tenure that he was going to vote against him. But Baxter submitted to the district court a mass of testimonial material all to the effect that, before May 5, the president of the division of Baxter in which Cada worked had authorized Becks to reorganize the creative services department and in the process to jettison Cada. This evidence, which was not contradicted, showed that Becks was authorized to fire Cada and that he did so at the May 5 meeting. By Cada's own version of the meeting of May 22 with Stauner, Stauner merely made clear at that meeting that Becks had been acting within his actual authority when he fired Cada. The May 5 meeting was the equivalent of the tenure vote in Ricks. It was the making and communication to Cada of the decision to fire him effective within a few weeks after...

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763 practice notes
  • ABECASSIS v. WYATT, CIVIL ACTION NO. H-09-3884
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 31, 2011
    ...show that they exercised due diligence in pursuing the claim during the Page 61limitations period. See Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990); Litle, 507 F. Supp. 2d at 277. Unlike the discovery rule, which delays accrual of a claim, the effect of equitable tolli......
  • Jones v. Int'l Ass'n of Bridge Structural Ornamental & Reinforcing Iron Workers, Case No. 10–C–560.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • March 28, 2012
    ...result, the timely filing requirement is subject to waiver, estoppel and equitable tolling. Id.;see also, Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir.1990). Accordingly, the court does not lack jurisdiction and Count I of the plaintiff's complaint is not subject to dismissal......
  • Allstate Ins. v. Valley Physical Medicine & Rehab., No. 05-5934(DRH)(MLO).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • February 21, 2007
    ...tolling, which does not require an effort by the defendant to prevent the plaintiff from suing. See Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir.1990). All that the Seventh Circuit requires for tolling is that a plaintiff "despite all due diligence [be] unable to obtain vital......
  • Lattisaw v. Dist. of Columbia, Civil Action No. 13–cv–0762 (KBJ)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 28, 2015
    ...vital information bearing on the existence of [his or] her claim." Smith–Haynie, 155 F.3d at 579 (citing Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir.1990) ). A plaintiff bears the burden of showing that such tolling is warranted, and it is well established that courts should......
  • Request a trial to view additional results
760 cases
  • ABECASSIS v. WYATT, CIVIL ACTION NO. H-09-3884
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 31, 2011
    ...show that they exercised due diligence in pursuing the claim during the Page 61limitations period. See Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990); Litle, 507 F. Supp. 2d at 277. Unlike the discovery rule, which delays accrual of a claim, the effect of equitable tolli......
  • Jones v. Int'l Ass'n of Bridge Structural Ornamental & Reinforcing Iron Workers, Case No. 10–C–560.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • March 28, 2012
    ...result, the timely filing requirement is subject to waiver, estoppel and equitable tolling. Id.;see also, Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir.1990). Accordingly, the court does not lack jurisdiction and Count I of the plaintiff's complaint is not subject to dismissal......
  • Allstate Ins. v. Valley Physical Medicine & Rehab., No. 05-5934(DRH)(MLO).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • February 21, 2007
    ...tolling, which does not require an effort by the defendant to prevent the plaintiff from suing. See Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir.1990). All that the Seventh Circuit requires for tolling is that a plaintiff "despite all due diligence [be] unable to obtain vital......
  • Lattisaw v. Dist. of Columbia, Civil Action No. 13–cv–0762 (KBJ)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 28, 2015
    ...vital information bearing on the existence of [his or] her claim." Smith–Haynie, 155 F.3d at 579 (citing Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir.1990) ). A plaintiff bears the burden of showing that such tolling is warranted, and it is well established that courts should......
  • Request a trial to view additional results

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