Ciccone v. Textron, Inc., 79-1541

• Citation: 616 F.2d 1216
• Decision Date: 17 March 1980
• Docket Number: No. 79-1541,79-1541
• Parties: 22 Fair Empl.Prac.Cas. 497, 22 Empl. Prac. Dec. P 30,755 Valentine R. CICCONE, Plaintiff, Appellant, v. TEXTRON, INC., et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 1216

616 F.2d 1216

22 Fair Empl.Prac.Cas. 497,

22 Empl. Prac. Dec. P 30,755

Valentine R. CICCONE, Plaintiff, Appellant, v. TEXTRON, INC., et al., Defendants, Appellees.

No. 79-1541.

United States Court of Appeals, First Circuit.

Argued Jan. 8, 1980.

Decided March 17, 1980.

Robert D. Parrillo, Providence, R. I., with whom A. Lauriston Parks and Hanson, Curran & Parks, Providence, R. I., were on brief, for plaintiff, appellant.

Michael P. DeFanti, Providence, R. I., with whom Daniel K. Kinder and Hinckley, Allen, Salisbury & Parsons, Providence, R. I., were on brief, for defendants, appellees.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Valentine R. Ciccone appeals from the district court's grant of summary judgment for defendants in this age discrimination action. The district court held that Ciccone's claim was barred by his failure to file a charge of age discrimination with the Department of Labor within 180 days of the most recent act of age discrimination he had alleged. Ciccone contends that the proper filing period should have been 300 days, as provided in 29 U.S.C. § 626(d)(2), because the alleged violations occurred in a so-called "deferral state." As we agree with the district court that the appropriate filing limit was 180 days, we affirm.

The Facts

Ciccone was born on May 18, 1924. From May 1971 to October 1974, he was employed by appellee Textron, Inc., as vice president, administration, of its Gorham Division. In October 1974 he became vice president, administration, in the Homelite Division of Textron. On May 26, 1977, he was terminated from his job at Homelite. Some seven months later, on January 4, 1978, believing that the position he once held at the Gorham Division was vacant, Ciccone wrote to Joseph B. Collinson, president of Textron, expressing an interest in "returning (again) to Textron." ¹ Collinson responded by letter dated January 9, 1978, saying "it would be a mistake for you to return to Gorham, but if any other position becomes available . . . I'll contact you." ²

On August 2, 1978, Ciccone filed charges of age discrimination with the United States Department of Labor and with the Rhode Island state agency designated for that purpose. These filings occurred 433 days after Ciccone's termination at Homelite and 205 days after Collinson's letter rejecting his application for the post at the Gorham Division. Sixty days passed without action by either state or federal authorities on Ciccone's claim. On October 10, 1978, Ciccone commenced this action in the district court alleging age discrimination in violation of the Age Discrimination in Employment Act, (ADEA), 29 U.S.C. §§ 621-634.

In his district court complaint, appellant alleged, in substance, the facts recited above and stated that the conduct of defendants Textron and Collinson, "from and after May 26, 1977, with respect to the termination of the plaintiff's employment (viz. May 26, 1977) and refusal to consider the plaintiff for reemployment (viz. January 9, 1978) constitute(d) a continuing and willful violation of 29 U.S.C. § 623(a)." Defendants filed a motion to dismiss the complaint based on Ciccone's alleged failure to file timely charges with the federal and state agencies. Defendants also requested an order limiting discovery to the issue of subject matter jurisdiction until such time as the district court determined whether it had jurisdiction of the case. In support of their motion to dismiss, defendants filed an affidavit from J. Joseph Kruse, senior vice president, administration, of Textron, stating that the position of vice president, administration, at Gorham formerly held by appellant had been discontinued and the duties of the job reassigned to other members of the staff.

On February 5, 1979, the district court ruled that the proper filing deadline for Ciccone's claim was 180 days, and that his claims of age discrimination were thus time-barred unless he could establish special facts justifying an equitable tolling of the time limit. This was the court's principal basis for decision, and if correct, plainly barred claims based both on the May 26, 1977 discharge and the refusal to rehire on January 9, 1978. However, the court went on to speculate, in the alternative, as to what would happen were it to rule that 300 rather than 180 days were available. Were 300 days the yardstick, Ciccone was still too late (absent equitable tolling) to contest the May 26 discharge. Only if the January 1978 exchange of letters evidenced an ongoing or later violation would the 300 days help. On this question, the court was of two minds. It rejected the notion that a simple refusal to rehire for the same job showed a "continuing" violation of the Act; but it saw possible merit in the theory that refusal to rehire for a different position might indicate a "separate" violation. Even so, however, the court felt that Ciccone had demonstrated no chance of prevailing here. According to the uncontradicted affidavit by Kruse, the Gorham job had been abolished by the time appellant applied. Thus the court saw no way Ciccone could prevail except by establishing an equitable tolling. On this issue alone, it allowed limited discovery to proceed.

On February 23, 1979, Ciccone's deposition was taken by counsel for defendants. In the course of his deposition, Ciccone stated that he had learned from sources at Gorham that his former position there had been filled by a younger man who had been given the title "Director of Administration." Appellant refused to name his sources. On the basis of this deposition, Ciccone then moved for reconsideration by the district court of its earlier finding that the January 1978 refusal to rehire did not amount to a separate violation of the Act. On April 13, 1979, the district court entered an order refusing to reconsider its earlier ruling until appellant had established that he was entitled to an equitable tolling of the 180-day filing deadline. After an evidentiary hearing on this issue, at which appellant testified, the district court ruled that appellant had failed to establish sufficient grounds for an equitable tolling. ³ Accordingly, on October 10, 1979, the district court entered judgment for the defendants on their motion to dismiss, which was treated as a motion for summary judgment pursuant to Fed.R.Civ.P. 12(b)(6). This appeal followed.

I.

We turn first to appellees' contention that refusal to rehire Ciccone on January 9, 1978 did not and could not constitute a separate violation of the Act. This episode was the only purported violation which occurred within 300 days of Ciccone's filing of charges with the Department of Labor; hence if appellees are correct that the refusal to rehire was not a separate violation, it is irrelevant whether the proper filing limit was 300 days or 180. In either event appellant could not prevail. While it would be tempting to follow this route, thus avoiding the tricky problem of statutory interpretation involved in determining the proper time limit, we are unable to do so.

It is clear that the district court decided this case on the basis that 180 days rather than 300 days applied. Its ruminations on February 5 concerning the January 9 refusal to rehire were a kind of addendum to its basic holding that the 180-day limit applied; and they formed no part whatever of its final holding on October 10. In the initial, February 5, discussion the court said that merely refusing to rehire does not, by itself, establish a continuing violation. Such refusal, being but the natural consequence of the discharge, is attributable only to the earlier event. See Goldman v. Sears, Roebuck & Co., 607 F.2d 1014, 1017-19 (1st Cir. 1979); cf. United Airlines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). The district court opined, however, that refusal to rehire for a job different from the one to which the discharge related might be a sufficient basis for claiming a separate violation. On this reasoning, the court said that Ciccone's claim of a separate violation in January 1978 had "somewhat more merit" than his claim of continuing violation. Nevertheless, the court went on to reject Ciccone's claim of separate violation on the ground that defendants' then uncontroverted affidavit showed the job appellant had applied for at Gorham was discontinued. Since a refusal to hire cannot constitute a new violation in the absence of a job to be filled, see Powell v. Southwestern Bell Telephone Co., 494 F.2d 485, 489 (5th Cir. 1974), the district court concluded that the refusal to rehire could not be a separate violation on the facts then before it.

This was how matters stood immediately after the court's February 5 decision. During the period the court allowed for discovery relating to the possibility of equitable tolling, however, the picture changed considerably. Ciccone claimed in his deposition that his old job at Gorham had been filled by a younger man who was given a different title; as a result, Ciccone moved to have the court reconsider its earlier holding that the January 9 incident was not a separate violation. The district court refused reconsideration, ruling that even if a separate violation were shown, Ciccone's claim would nonetheless be barred by the 180-day limit. The final order issued October 10, 1979 thus rested entirely on the premise that the appropriate benchmark was 180 days rather than 300. Since appellant had alleged no instances of discrimination within 180 days of his filing of charges, and had established no equitable grounds for tolling the time limit, the district court held his claim barred.

Under these circumstances, we reject appellees' invitation to address the question whether the refusal to rehire in January 1978 was insufficient, for summary judgment purposes, to establish a violation of the Act. This was not an issue which ultimately played any part in the court's...