Callan v. Pepsi-Cola Bottling Co. of Topeka, Inc.
| Decision Date | 26 August 1992 |
| Docket Number | No. 91-4101-S.,91-4101-S. |
| Citation | 801 F. Supp. 448 |
| Parties | John D. CALLAN, Plaintiff, v. PEPSI-COLA BOTTLING CO. OF TOPEKA, INC., LinPepCo Corp., Don Hogue, and Fern Hogue, Defendants. |
| Court | U.S. District Court — District of Kansas |
Robert M. Telthorst, Bibler & Telthorst, P.A., Topeka, Kan., for plaintiff.
K. Gary Sebelius, Catherine A. Walter, Davis, Wright, Unrein, Hummer & McCallister, Topeka, Kan., Robert F. Rossiter, Jr., Fraser, Stryker, Vaughn, Meusey, Olson, Boyer & Bloch, P.C., Omaha, Neb., for defendants.
This matter is before the court on defendant's amended motion to dismiss1 the remaining cause of action by the plaintiff, John D. Callan, against defendant Pepsi-Cola Bottling Co. of Topeka, Inc.2 Plaintiff's claim alleges a violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., contending that he was terminated from employment by the defendant due to his age.
Defendant Pepsi-Cola Bottling Co. of Topeka, Inc. ("Pepsi-Cola") seeks dismissal of the plaintiff's claim pursuant to Fed. R.Civ.P. 12(b)(1) for lack of jurisdiction over the subject matter and 12(b)(6) for failure to state a claim upon which relief can be granted. Because the parties have submitted materials beyond the pleadings for the court's consideration, the defendant's motion to dismiss for failure to state a claim upon which relief can be granted is properly characterized as a motion for summary judgment and disposed of as provided in Rule 56. See Fed.R.Civ.P. 12(b).
Under Fed.R.Civ.P. 56(c), the moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits submitted by the parties, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. A moving party is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Maughan v. SW Servicing, Inc., 758 F.2d 1381, 1387 (10th Cir. 1985). A "genuine" issue of fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
The moving party has the burden of showing the absence of a genuine issue of material fact. This burden may be discharged by showing that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. The court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues. United States v. O'Block, 788 F.2d 1433, 1435 (10th Cir.1986). The court must also consider the record in the light most favorable to the party opposing the motion. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985).
Plaintiff's only remaining cause of action alleges a violation of the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. The court finds that it has subject matter jurisdiction under 28 U.S.C. § 1331. Venue is proper under 28 U.S.C. § 1391(b)(2).
For the purpose of deciding this motion, the court finds the following facts to have been established.
John D. Callan, the plaintiff, was born February 23, 1929. In 1975, he accepted a position with Pepsi-Cola, the defendant, as its sales manager. The plaintiff satisfactorily carried out the duties of this position from 1975 until June 15, 1989, when he vacated his office at the request of his employer.
On April 21, 1989, plaintiff and other management employees of Pepsi-Cola were informed that Pepsi-Cola had been sold to the LinPepCo Corporation of Nebraska, originally a defendant in this action. On that date the previous owners of Pepsi-Cola, Don and Fern Hogue, presented the plaintiff and other management staff with "employment agreements," and asked the employees to sign them immediately. Plaintiff expressed concern that terms of the agreement were unclear, and asked if he would be permitted to consult with a lawyer. Fern Hogue explained that if he did not sign, he would be an employee-at-will and could be terminated at any time. Plaintiff then signed the agreement.
The agreement provided that plaintiff would be employed in the position of sales manager, but would perform only the duties and services specifically requested by the Board of Directors of Pepsi-Cola. The agreement provided further that "in the absence of specific requests by the board of directors of Company, Employee shall not perform or render any duties or services to Company." Under the terms of the agreement, Pepsi-Cola was to continue plaintiff's monthly salary and benefits for a 10-month period ending February 20, 1990. However, the agreement expressly permitted plaintiff to seek employment elsewhere during the 10-month term, and provided that the monthly salary payable by Pepsi-Cola would be reduced by the gross compensation earned by plaintiff as a result of other employment during the period. The agreement also specifically provided, "Company may terminate Employee's employment at any time, either with or without cause; provided however, any such termination by Company shall not relieve Company of its obligation to pay the Monthly Salary during the Employment Period."
In the following weeks, plaintiff went to work as usual and carried out his normal duties as sales manager for Pepsi-Cola. Because he was uncertain of his role, he sought clarification from Richard Nicoll ("Nicoll"), the new president of Pepsi-Cola, and Steve Ford ("Ford"), LinPepCo's vice-president of finance. They were unresponsive. However, on June 8, 1989, he was informed by Nicoll and Ford that the company was consolidating positions, that there was no longer a place for plaintiff in the organization, and that his position was being eliminated. Plaintiff's age was not mentioned by Nicoll or Ford as a reason for his termination. When plaintiff asked who would be taking over his duties, Nicoll responded that Dave Schlagle, LinPepCo's vice-president of sales, would be handling those functions from his office in Lincoln, Nebraska. Nicoll suggested plaintiff wrap things up at Pepsi-Cola within a week. Plaintiff vacated his office and left work at Pepsi-Cola for the last time on June 15, 1989. Although Nicoll had indicated that they might need to consult with plaintiff periodically, plaintiff was never contacted about doing so.
In December 1989, plaintiff heard from a friend that Pepsi-Cola had replaced him with a man half his age. On January 12, 1990, Don Hogue ("Hogue") introduced the plaintiff to Daniel Dagosta ("Dagosta"). Hogue indicated that Dagosta had taken plaintiff's position as sales manager with Pepsi-Cola. Dagosta was approximately 39 years old. He had been employed by the defendant in October 1989, as general sales manager. Prior to assuming this position, Dagosta had served as a district manager for Pepsi-Cola Bottling Co. of Omaha, Nebraska.
Plaintiff was paid his full salary and benefits under the terms of the employment agreement until February 20, 1990, when the agreement expired. Thereafter, plaintiff received unemployment compensation for 26 weeks.
On the advice of friends and others, plaintiff filed a complaint with the Topeka Human Rights Commission on or about March 14, 1990, alleging that Pepsi-Cola violated the Topeka City Code and the Kansas Act Against Discrimination because of his age. In that complaint he alleged that the date of the incident was February 20, 1990. On May 25, 1990, at the suggestion of the Human Rights Commission, plaintiff filed a complaint with the Kansas Commission on Civil Rights ("KCCR"), charging Pepsi-Cola with violating the Kansas Age Discrimination in Employment Act by terminating him on the basis of his age. The KCCR refused to docket the complaint because it considered the date of the incident to be June 8, 1989, when plaintiff was informed that his employment would be terminated at the expiration of the term of the employment agreement.3 The KCCR referred the complaint on that same date to the Equal Employment Opportunity Commission ("EEOC").4
On June 4, 1990, the EEOC notified Pepsi-Cola that it had been charged with discrimination, noting that it was an "unperfected charge." With the assistance of the EEOC staff, plaintiff filed a perfected charge on July 24, 1990, with the EEOC, charging a violation of the ADEA by Pepsi-Cola. The complaint simply alleged that he had been informed on June 8, 1989, that no position would be available for him when the employment contract ended on February 20, 1990.
Sometime prior to July 30, 1990, plaintiff retained counsel to represent his interests. The EEOC staff subsequently learned that plaintiff intended to file a lawsuit based on his charge. On August 28, 1990, the EEOC notified plaintiff that its investigation of his charge had been discontinued because he was initiating suit in court, and that he was entitled to file suit under the ADEA upon the expiration of 60 days following the filing of his charge.
On May 22, 1991, plaintiff filed the complaint now before the court.
The defendant first argues that the plaintiff's claim should be dismissed because it was not timely filed with the EEOC as required by the ADEA. Specifically, defendant cites 29 U.S.C. § 626(d), which reads as follows:
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Callan v. Pepsi-Cola Bottling Co. of Topeka, Inc., Civ. A. No. 91-4101-DES.
...complaint occurred no later than June 8, 1989, when the plaintiff was notified of his termination. Callan v. Pepsi-Cola Bottling Co. of Topeka, 801 F.Supp. 448, 453 (D.Kan.1992); see Gray v. Phillips Petroleum Co., 858 F.2d 610, 613-14 (10th Cir.1988); Wilkerson v. Siegfried Ins. Agency, 62......
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Filing charges and lawsuits
...actual knowledge. See Jackson v. Richards Medical Co. , 961 F.2d 575, 580 (6th Cir. 1992); Callan v. Pepsi-Cola Bottling Co. , Inc., 801 F. Supp. 448, 455 n.7 (D. Kan. 1992). In other words, the courts will not permit tolling when an individual, who generally is aware of her rights, sits on......