Caldwell v. National Ass'n of Home Builders

• Decision Date: 27 August 1985
• Docket Number: No. 84-3120,84-3120
• Citation: 771 F.2d 1051
• Parties: 38 Fair Empl.Prac.Cas. 1398, 37 Empl. Prac. Dec. P 35,460 Ross CALDWELL, Plaintiff-Appellant, v. NATIONAL ASSOCIATION OF HOME BUILDERS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1051

771 F.2d 1051

38 Fair Empl.Prac.Cas. 1398,

37 Empl. Prac. Dec. P 35,460

Ross CALDWELL, Plaintiff-Appellant, v. NATIONAL ASSOCIATION OF HOME BUILDERS, Defendant-Appellee.

No. 84-3120.

United States Court of Appeals Seventh Circuit.

Argued May 31, 1985.

Decided Aug. 27, 1985.

Charles A. Asher, Lysohir, Singer & Asher, South Bend, Ind., for plaintiff-appellant.

Peter R. Spanos, Hendrick, Spanos & Phillips, Atlanta, Ga., for defendant-appellee.

Before CUMMINGS, Chief Judge, EASTERBROOK, Circuit Judge, and PELL, Senior Circuit Judge.

CUMMINGS, Chief Judge.

Plaintiff Ross Caldwell filed suit in Indiana state court against the National Association of Home Builders ("NAHB") alleging that the NAHB had discriminated against him in employment on the basis of his age in contravention of the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-634 ("ADEA"), and breach of contract. NAHB removed the case to federal court and requested summary judgment because Caldwell had not timely filed his charge with the Equal Employment Opportunity Commission ("EEOC"). The district court granted summary judgment to defendant and dismissed the complaint. 598 F.Supp. 371 (N.D.Ind.1984). For the reasons stated herein, we reverse.

I

NAHB had employed plaintiff as a regional representative for over nine years when it decided to abolish its regional representative program. Consequently the defendant notified Caldwell by letter dated September 25, 1981, that he would be terminated, effective October 31, 1981, along with NAHB's eleven other regional representatives. In their place, the NAHB created the Association Management Services Division ("AMSD") to provide many of the services formerly provided by its regional representatives, using only four employees. The NAHB requested its employees and affiliates, including its regional representatives, to apply for the AMSD positions, and it disseminated an explanation of the necessary qualifications for the positions. Plaintiff applied for the three available positions of Assistant Director (one had already been filled); when a fourth position of Membership Director became available, Caldwell applied for it as well. He was assured he would be considered for each position for which he had applied.

At the request of several NAHB members and the staff persons of local affiliates, NAHB temporarily reemployed Caldwell January 4, 1982, for the period during which the AMSD was being staffed and organized. This employment continued until July 2, 1982. Caldwell was not hired into any of the four AMSD positions for which he applied, the last of these being filled May 20, 1982. Of the five positions that had been filled since the fall of 1981, only two were filled with existing NAHB employees, both of these being younger than Caldwell but still within the ADEA-protected age group. The other three positions were filled with new employees younger than the protected age group. On August 9, 1982, plaintiff filed his charge with the EEOC. That charge, as amended August 20, alleged as follows:

I worked for the National Association of Home Builders for approximately ten years. I understand it to be a non-profit Illinois corporation headquartered in Washington, D.C. It is an educational and lobbying organization for home builders.

My job was as a regional representative. There were approximately 12 regional representatives in the employ of NAHB for the last several years. By the fall of 1981, almost all of the regional representatives were within the protected age classification of the Age Discrimination in Employment Act. I am 59 1/2 years old.

Apparently plans were developed in late 1981 and were implemented in 1982 to do away with the regional representatives and to open a new division entitled Association Management Services Division to carry on the same function as was carried on by the regional representatives. I and the vast majority of the regional representatives were terminated and the persons hired into the Association Management Services Division were, at least for the most part, in their 20's and 30's.

All of my evaluations by the NAHB were excellent and I was always told that I was an extremely beneficial asset of the Association. I believe that I have been discriminated against on the basis of my age. I was terminated finally on July 2, 1982.

I applied for the position of director of membership services as well as all positions within the Association Management Services Division. I was not hired in the position of director of membership services or in any position in the Association Management Services Division. I believe that three of the five persons holding the positions for which I applied are under the protected age range of the Age Discrimination in Employment Act. Those three persons under the protected age range of the Age Discrimination in Employment Act were also not previously employees of the National Association of Home Builders.

I believe that I have also been discriminated against in terms and conditions of employment because the pay and benefits extended to me during my employment by the National Association of Home Builders was substantially less advantageous than those extended to persons now acting as director of the membership services and acting as members of the Association Management Services Division.

After receiving a right-to-sue letter from the EEOC, plaintiff filed suit on January 31, 1983, alleging that "[d]efendant discharged plaintiff and otherwise discriminated against him with respect to his compensation, terms, conditions and privileges of employment because of his age" in violation of ADEA (Count I), and stating a claim for breach of contract under state law (Count II). After the defendant removed the action to the Northern District of Indiana, discovery ensued. On October 15, 1984, the NAHB filed a motion for summary judgment on both counts of Caldwell's complaint. Caldwell voluntarily dismissed his pendent state law claim. The district court held a hearing on December 3, 1984, on defendant's request for summary judgment on the remaining count of age discrimination. Because the district court accepted defendant's contention that Caldwell's complaint alleged solely discriminatory discharge, and because Caldwell had received notice of his termination in late September 1981, the district court found that his charge with the EEOC filed in August 1982 was outside the 180-day limitations period. See 29 U.S.C. Sec. 626(d). The district court therefore dismissed Caldwell's complaint. We respectfully disagree with the district court's conclusions.

II

The district court based its decision on its determination that Caldwell's charge of discrimination addressed only his allegedly discriminatory discharge. If indeed the charge had confined itself to the discharge, then we would agree with the district court. See Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (limitations period for filing complaint with EEOC runs from time plaintiff is notified he will be discharged, not from time of actual termination of employment); Heiar v. Crawford County, 746 F.2d 1190 (7th Cir.1984) (same), certiorari denied, --- U.S. ----, 105 S.Ct. 3500. This Circuit has observed that all doubts on jurisdictional timeliness questions are to be resolved in favor of trial. Pastrana v. Federal Mogul Corp., 683 F.2d 236, 242 (1982) (citation omitted). Requiring that a charge be filed is intended to notify the EEOC of the charges and to enable the agency to investigate and perhaps effect a conciliation between the parties. Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147. Consequently, a court must read EEOC charges broadly when determining its jurisdiction, and a claim may encompass any " 'discrimination like or reasonably related to the allegations of the charge and growing out of such allegations.' " Jenkins v Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164, 167 (7th Cir.1976) (en banc ) (citing Danner v. Phillips Petroleum Co., 447 F.2d 159, 162 (5th Cir.1971)), certiorari denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598.

The difficulty with the district court's position is that the EEOC charge filed by Caldwell addresses both his discriminatory discharge and the NAHB's failure to hire him in the newly created AMSD positions. The third paragraph of the charge addresses the discharge the previous fall. The fifth paragraph addresses the NAHB's failure to hire him anew. Because the charge specifically and unequivocally encompasses the discriminatory decisions NAHB made in the spring of 1982, the charge filed in August 1982 was within 180 days and therefore was timely as to the NAHB's failure to rehire plaintiff.

Defendant's citation of Lawson v. Burlington Industries, Inc., 683 F.2d 862 (4th Cir.1982), certiorari denied, 459 U.S. 944, is unavailing. The Fourth Circuit affirmed the district court's dismissal of plaintiff's complaint because it was time-barred. The complaint, however, had dealt only with the employer's decision to lay off the plaintiff and did not refer to the employer's subsequent decisions not to rehire plaintiff. Because the charge referred to no post-termination decisions by the employer, the complaint could not rely on any such discriminatory decisions to bring the charge within the 180-day period. See also Herman v. National Broadcasting Co., 744 F.2d 604, 606 (7th Cir.1984) (citing Lawson approvingly), certiorari denied, --- U.S. ----, 105 S.Ct. 1393, 84 L.Ed.2d 782. The specific reference to the NAHB's post-termination decisions, independent of the allegations concerning Caldwell's discharge, make the instant situation completely different from the one the court considered in Lawson.

Nor is defendant's attempt to twist Janowiak v. Corporate City of South Bend, 750 F.2d 557 (7th Cir.1984), to fit its argument persuasive. Janowiak involved the implementation of an...