Callowhill v. Allen-Sherman-Hoff Co., Inc.

• Decision Date: 04 November 1987
• Docket Number: 87-1169 and 87-1170,Nos. 87-1034,ALLEN-SHERMAN-HOFF,s. 87-1034
• Citation: 832 F.2d 269
• Parties: 45 Fair Empl.Prac.Cas. 222, 44 Empl. Prac. Dec. P 37,519, 56 USLW 2307 Frederick R. CALLOWHILL, Appellant, v. TheCOMPANY, INC. and Ecolaire, Inc. Walter J. SMALL, Appellant, v. TheCOMPANY, INC. and Ecolaire, Incorporated. William F. MARTIN, Appellant, v. TheCOMPANY, INC. and Ecolaire, Incorporated.
• Court: U.S. Court of Appeals — Third Circuit

Page 269

832 F.2d 269

45 Fair Empl.Prac.Cas. 222,

44 Empl. Prac. Dec. P 37,519, 56 USLW 2307

Frederick R. CALLOWHILL, Appellant, v. The ALLEN-SHERMAN-HOFF COMPANY, INC. and Ecolaire, Inc.

Walter J. SMALL, Appellant, v. The ALLEN-SHERMAN-HOFF COMPANY, INC. and Ecolaire, Incorporated.

William F. MARTIN, Appellant, v. The ALLEN-SHERMAN-HOFF COMPANY, INC. and Ecolaire, Incorporated.

Nos. 87-1034, 87-1169 and 87-1170.

United States Court of Appeals Third Circuit.

Argued Oct. 1, 1987.

Decided Nov. 4, 1987.

Ralph B. D'Orio, Gary C. Bender (argued), Cramp, D'Iorio, McConchie & Forbes, Media, Pa., for appellants.

Judith E. Harris (argued), Harris & Kahn, Philadelphia, Pa., for Allen-Sherman-Hoff Co., Inc. and Ecolaire, Inc.

Before SEITZ, GREENBERG and HUNTER, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

Plaintiffs Frederick R. Callowhill, Walter J. Small, and William F. Martin appeal from summary judgments entered in the district court in favor of defendants Allen-Sherman-Hoff Company, Inc. and Ecolaire, Inc., dismissing their separate complaints under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621-634. The grounds for granting the motions were that the cases are barred by the statute of limitations under the ADEA which requires that cases be filed within two years of the accrual of a cause of action, or three years if the violations are willful. 29 U.S.C. Sec. 626(e)(1); 29 U.S.C. Sec. 255(a). Plaintiffs alleged that they were discharged by their employer, Allen-Sherman-Hoff, because of age. Ecolaire was joined as a defendant because Allen-Sherman-Hoff is one of its divisions. It is undisputed that each plaintiff was advised on or about November 18, 1983 that his last day of work would be December 9, 1983 and that none worked for Allen-Sherman-Hoff after the latter date.

We separately set forth additional material facts developed in each case on the motions for summary judgment. Callowhill, who was born November 7, 1921, was employed by Allen-Sherman-Hoff on June 8, 1979 as a manager of the International Operations Group responsible for all sales activities except in the United States and Canada. He was told that he was being discharged because of a departmental reorganization. While Callowhill had "suspicions" that his discharge was because of age, it was not until almost two years later, when he talked to other former employees of Allen-Sherman-Hoff, that he concluded the corporation had discriminated against older employees. Accordingly, he consulted an attorney on or about October 4, 1985 and on October 8, 1985 filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) in Philadelphia. Notice of the charge was served on Allen-Sherman-Hoff on October 30, 1985 and on December 9, 1985 Callowhill brought this action in the district court.

Small, who was born on February 9, 1922, joined Allen-Sherman-Hoff in January 1948 and in early January 1974 became manager of its renewal parts department. The company advised him that his discharge was necessary because of economic reasons. While Small subsequently wondered whether the introduction of a new pension plan made it advantageous for Allen-Sherman-Hoff to discharge him because of his age, he did not consult an attorney until after he was told in September 1985 that older employees had been terminated by Allen-Sherman-Hoff even though there was work for them. He consulted an attorney on or about October 4, 1984 and on October 11, 1985 filed a Charge of Discrimination with the EEOC. Notice of the charge was served on Allen-Sherman-Hoff on October 31, 1985 and on December 9, 1985 Small brought this action in the district court.

Martin, who was born on June 14, 1920, was hired by a predecessor corporation to Allen-Sherman-Hoff in 1941 as a payroll clerk. He began working for Allen-Sherman-Hoff in 1976 as a sales correspondent and in 1981 was given the added responsibility of being a pricing specialist. Martin was told he was being discharged because of a departmental reorganization and economic conditions. It was not until he had a discussion with Small in September 1985 that he considered his age might have been a factor in the decision to terminate him. On or about October 4, 1985 he consulted with counsel and he filed a Charge of Discrimination with the EEOC on October 15, 1985. Notice of the charge was served on Allen-Sherman-Hoff on October 30, 1985 and on December 9, 1985 Martin brought this action in the district court.

It is undisputed from the records before us that Allen-Sherman-Hoff never posted the notice required by 29 U.S.C. Sec. 627 to advise its employees of their rights under the ADEA. It appears, however, though plaintiffs claim not to have seen them, that it posted notices from the Pennsylvania Human Relations Commission dealing with employees' rights under Pennsylvania anti-discrimination laws and that at about the time plaintiffs commenced their actions in the district court, they also filed complaints with the Pennsylvania Commission.

Prior to moving for summary judgment, defendants filed, in all three cases, motions to dismiss the complaints for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Defendants asserted that the actions were barred by plaintiff's failure to file timely administrative charges with the EEOC under 29 U.S.C. Sec. 626(d) which requires, as a prerequisite to a district court action, that administrative charges be filed within 180 days after the occurrence of an alleged unlawful practice. In a state such as Pennsylvania which has an agency performing functions similar to those of the EEOC, the time for filing is extended to 300 days or to a period within 30 days of receipt by the individual of notice of termination of proceedings under state law, whichever is earlier. 29 U.S.C. Sec. 626(d). In view of the circumstance that affidavits submitted by the parties on these initial motions were considered by the district court the Rule 12(b)(6) motions were treated as motions for summary judgment. Nevertheless we will continue to refer to them as motions to dismiss so as to distinguish them from the later motions.

The motions to dismiss were argued simultaneously before the district court which denied them on the authority of our opinion in Bonham v. Dresser Indus., Inc., 569 F.2d 187 (3d Cir.1977), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978). The Bonham case held that the employer's failure to post the notice required by 29 U.S.C. Sec. 627 will result in tolling the running of the limitations period in the EEOC proceedings, at least until such time as the aggrieved person seeks out an attorney or acquires actual notice of his rights under the ADEA. 569 F.2d at 193.

Subsequent to the completion of discovery, defendants moved for summary judgment. In Callowhill they alleged that the action was barred by the two-year statute of limitations in 29 U.S.C. Sec. 626(e)(1) and 29 U.S.C. Sec. 255(a) and that the evidence in the record, as a matter of law, could not support a charge of age discrimination. In Small and Martin the motions for summary judgment were based solely on the statute of limitations. ¹ In Callowhill the district judge, in an oral opinion, ruled that the evidence was insufficient to support a finding of willfulness and thus the two-year statute of limitations applied. The judge then held that the claim was untimely and, accordingly, he granted summary judgment and dismissed the action. He indicated, however, that he was not "prepared to rule on this record that there is no issue of age discrimination, or to grant summary judgment on that basis." On December 15, 1986, the judge entered an order reflecting this decision.

In the Small and Martin cases a different judge filed a single written opinion on defendants' motions. ² He held that plaintiffs had failed to raise a genuine issue of material fact with respect to Allen-Sherman-Hoff's alleged willful statutory violation of the ADEA and, as a result, the two-year statute of limitations applied. The judge then held that notwithstanding Allen-Sherman-Hoff's failure to post the required notice of employees' rights under 29 U.S.C. Sec. 627, the two-year statute of limitations for the court action, as distinguished from the shorter administrative statute of limitations, would not be tolled nor would it be tolled because of Allen-Sherman-Hoff's alleged misrepresentation as to why plaintiffs were discharged. On February 25, 1987, the judge entered an order reflecting this decision. Small and Martin appealed from this order and Callowhill appealed from the order of December 15, 1986.

Plaintiffs contend that the two-year statute of limitations should be tolled by reason of the failure of Allen-Sherman-Hoff to post the notice required by 29 U.S.C. Sec. 627. They further assert that they are entitled to the tolling inasmuch as they were barred by 29 U.S.C. Sec. 626(d) from filing their district court complaints until 60 days after they filed their administrative charges with the EEOC and thus could not bring their district court actions within the two years allowed. Alternatively, plaintiffs argue that the district court erred in finding as a matter of law that Allen-Sherman-Hoff's conduct could not be a willful violation of the ADEA. Defendants, in addition to controverting plaintiffs' contentions, assert that we should affirm the summary judgments as the trial court erred in denying their motions to dismiss predicated on plaintiffs' failure to file timely their administrative charges with the EEOC.

We deal first with defendants' contention that their motions to dismiss should have been granted. It is clear that the timeliness of plaintiffs' administrative charges and their district court complaints must be measured from the time plaintiffs were advised they were to be terminated. Delaware State College v. Ricks, 449 U.S. 250, 259, 101 S.Ct. 498, 504, 66 L.Ed.2d 431...