Clark v. Resistoflex Co., a Div. of Unidynamics Corp., 87-3611

Citation854 F.2d 762
Decision Date14 September 1988
Docket NumberNo. 87-3611,87-3611
Parties47 Fair Empl.Prac.Cas. 1548, 47 Empl. Prac. Dec. P 38,326, 57 USLW 2222, 3 Indiv.Empl.Rts.Cas. 1584, 10 Employee Benefits Ca 1013 William L. CLARK, Plaintiff-Appellant, v. RESISTOFLEX COMPANY, A DIVISION OF UNIDYNAMICS CORPORATION and its successor Crane Resistoflex Company, a Division of Crane Co., Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

G. Phillip Shuler, Dona J. Dew, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, La., for plaintiff-appellant.

Andrew P. Burnside, Keith M. Pyburn, McCalla, Thompson, Pyburn & Ridley, New Orleans, La., Daniel A. Rizzi, Kenneth J. McCulloch, Kramer, Levin, Nessen, Kamin & Frankel, New York City, for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before THORNBERRY, WILLIAMS, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Appellant William Clark, a former employee of appellee Resistoflex Company ("Resistoflex"), brought suit under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Sec. 621 et seq., and under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. Sec. 1132 et seq., alleging he had been discharged because of his age and because Resistoflex desired to prevent him from accruing enhanced benefits under the pension plan in which he was vested. After extensive discovery, the district court granted summary judgment for Resistoflex on grounds that the ADEA claim was time-barred--Clark having failed to file his charge of discrimination with the EEOC within 180 days--and that Clark's ERISA claim was both legally and factually insufficient. Finding that the record contains fact issues relating to when Clark's ADEA claim accrued and whether Resistoflex should be estopped from raising a limitations defense thereto, we reverse the district court's dismissal of that claim and remand for further proceedings. However, we affirm the district court's dismissal of Clark's ERISA claim as factually insufficient, without reaching whether Clark's allegations, if true, state a cause of action under ERISA.

I. Facts and Procedural History.

Resistoflex Company, a division of Unidynamics Corporation at the time in question, hired Clark in 1961 and kept him continuously employed until March 1985. At the time of his discharge, Clark was 48 years of age and worked as a regional sales manager out of the company's Baton Rouge, Louisiana, office. Resistoflex is headquartered in New Jersey.

On March 11, 1985, Clark received a phone call from his immediate supervisor, Bruce Freed, who six months earlier had come to work for Resistoflex and had replaced Clark's previous supervisor. Freed began the conversation by telling Clark that he, Freed, was "going to terminate" him. Freed also stated various reasons for this action, although Clark was too distraught to make any mental note of them. The conversation was heated but short, as Clark requested that Freed transfer the call to the company's personnel office. Clark then spoke to a personnel employee, Katherine Mulanaphy, who told him he soon would receive a letter that would "clarify his status" with Resistoflex.

On March 15, 1985, Clark received a letter dated March 12 from the personnel director, Tom Brath. This March 12 letter summarizes the terms and conditions of Clark's termination, which became effective on March 15. The letter detailed when severance pay would be made; the length of time medical insurance would remain in effect; and Clark's vested status in the company's pension plan. The letter also stipulated that Clark agree to refrain from using or disclosing proprietary information. Lastly--and significantly--the letter reserved to Resistoflex the right to terminate the severance agreement should Clark violate his "obligations hereunder or take any action, by word or deed, which would be derogatory or detrimental to or otherwise prejudicial to" Resistoflex. Clark testifies that this condition in the severance agreement initially deterred him from seeking counsel to assist him in vindicating his rights.

Clark filed his charge of discrimination with the EEOC on September 10, 1985, or 183 days after his telephone conversation with Freed. Thereafter, he brought this civil action under the ADEA, alleging age discrimination, and under ERISA, alleging that Resistoflex's purpose in terminating him was to deprive him from enhancing, through job longevity, his vested rights to company pension benefits. Clark also brought a state law claim for breach of employment contract, a claim which he has abandoned on appeal.

On August 17, 1987, the district court granted summary judgment for Resistoflex on all counts. 665 F.Supp. 1216. The court held Clark's ADEA claim time-barred because he had failed to file his charge with the EEOC within the 180-day period required under 29 U.S.C. Sec. 626(d). In so holding, the court refused to apply either equitable tolling to the EEOC filing deadline or equitable estoppel to Resistoflex's assertion of the filing deadline as a defense. Furthermore, the court dismissed Clark's ERISA claim on the ground that ERISA affords a vested employee no right to job longevity as a means of augmenting his pension. As an alternative ground, the court held that Clark's summary judgment evidence failed to raise a fact issue as to whether Resistoflex discharged him with specific intent to violate ERISA, an essential element of his claim. Clark appeals.

II. The Age Discrimination Claim.

A charge of discrimination must be timely filed with the EEOC prior to the initiation of a civil action under the ADEA. Love v. Pullman, 404 U.S. 522, 523, 92 S.Ct. 616, 617, 30 L.Ed.2d 679 (1972). Under the ADEA, two different time limits are applied to determine when the charge must be filed, depending upon whether the unlawful practice occurred in a "deferral state": If the unlawful practice occurred in a nondeferral state, the complaint must be filed in 180 days; but if it occurred in a deferral state, the time limit is extended to 300 days. 29 U.S.C. Sec. 626(d). 1 At the time he was terminated, Clark's regular place of employment was Louisiana--then, a nondeferral state 2--and the parties on motion for summary judgment argued their respective positions under the assumption that the 180-day period applied. Our analysis therefore proceeds on the basis of this assumption.

The operative date from which the 180-day filing period begins to run is "the date of notice of termination, rather than the final date of employment." Elliott v. Group Medical & Surgical Serv., 714 F.2d 556, 563 (5th Cir.1983) (citing Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981), and Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980)). Determination of when notice has been communicated to an employee is based upon an objective standard, focusing upon when the employee knew, or reasonably should have known, that the adverse employment decision had been made. McWilliams v. Escambia School Bd., 658 F.2d 326, 328 n. 1 (5th Cir. Unit B Oct. 1981). In the Supreme Court's language in Ricks, the relevant inquiry is when Resistoflex may be considered to have "established its official position--and made that position apparent" to Clark. 449 U.S. at 262, 101 S.Ct. at 506.

Another general feature of the EEOC filing requirement relevant to the present appeal is that Congress intended it to function as a statute of limitations rather than a jurisdictional prerequisite. Therefore, the filing deadline is subject to equitable modification, through tolling or estoppel, where necessary to effect the remedial purposes of the ADEA. See Pruet Production Co. v. Ayles, 784 F.2d 1275, 1279 (5th Cir.1986). See also Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 395 n. 11, 102 S.Ct. 1127, 1133 n. 11, 71 L.Ed.2d 234 (1982) (citing H.R.Conf.Rep. No. 950, 95th Cong., 2d Sess. 12, reprinted in 1978 U.S.Code Cong. & Ad.News 504, 528, 534 ("The conferees agree that the 'charge' requirement is not a jurisdictional prerequisite to maintaining an action under the ADEA and that therefore equitable modification for failing to file within the time period will be available to plaintiffs under this Act.")).

A. When Did Clark Receive Notice of Termination?

The district court ruled as a matter of law that Resistoflex's decision to terminate Clark was unequivocally communicated to him on March 11, 1985, when he received the phone call from Freed. Measured from this date, the 180-day period expired on September 9, 1985. 3 Clark's letter is stamped "received" by the EEOC on September 10, 1985, or 183 days after the alleged discriminatory act.

In so ruling, the district court focused its inquiry on specific language used by Freed in communicating the company's termination decision to Clark. Freed's statement that he was "going to terminate" Clark was held to articulate clearly "the official and final position of the general sales manager and should have put the plaintiff on notice that he was terminated." Relying upon Chardon v. Fernandez, supra, the district court reasoned that a termination message couched in future tense is no less clear than a present-tense expression: "While the termination was not effective until another date, the decision to 'terminate' had been made and communicated at this point."

The inquiry does not end here, however. Circumstances surrounding Freed's phone message, coupled with mixed official signals conveyed to Clark afterwards by the company's personnel office, are collectively sufficient to cast doubt upon whether a reasonable employee in Clark's position should have known that he had been discharged.

The record contains undisputed evidence that Freed lacked independent authority to terminate Clark, but had nonetheless threatened him with termination on previous occasions. Resistoflex had no formal procedures for issuing termination...

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