Coke v. General Adjustment Bureau, Inc.

• Decision Date: 23 March 1981
• Docket Number: No. 77-2874,77-2874
• Citation: 640 F.2d 584
• Parties: 25 Fair Empl.Prac.Cas. 433, 35 Empl. Prac. Dec. P 34,811 W. B. COKE, Jr., Plaintiff-Appellant, v. GENERAL ADJUSTMENT BUREAU, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 584

640 F.2d 584

25 Fair Empl.Prac.Cas. 433,

35 Empl. Prac. Dec. P 34,811

W. B. COKE, Jr., Plaintiff-Appellant, v. GENERAL ADJUSTMENT BUREAU, INC., Defendant-Appellee.

No. 77-2874.

United States Court of Appeals Fifth Circuit.

March 23, 1981.

Edward B. Cloutman, III, Dallas, Tex., for plaintiff-appellant.

Lutz Alexander Prager, Kenneth James Burchfiel, Appellate Div. EEOC, Washington, D. C., for amicus.

Kalvin M. Grove, Burton L. Reiter, Lawrence Cohen, Chicago, Ill., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GODBOLD, Chief Judge, and BROWN, COLEMAN, AINSWORTH, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON, THOMAS A. CLARK and WILLIAMS, Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:

W. B. Coke, Jr. brought this suit under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.A. §§ 621 et seq. (1975), alleging that General Adjustment Bureau, Inc. (GAB) unlawfully discriminated against him on account of his age by demoting him. GAB moved for summary judgment. The basis of GAB's motion was that § 626(d)(1) requires an aggrieved employee to file with the Secretary of Labor, within 180 days after the alleged unlawful practice occurred, a notice of the employee's intent to sue his employer. ¹ GAB argued in support of its motion that Coke had not filed the notice within the required 180-day period, that the 180-day filing requirement was a jurisdictional prerequisite, and therefore that Coke's complaint should be dismissed. The district court agreed, and dismissed the complaint for want of jurisdiction. Coke appealed. A panel of this court reversed, holding that the 180-day filing requirement was subject to equitable tolling and that there was a genuine issue of fact with respect thereto. Coke v. General Adjustment Bureau, Inc., 616 F.2d 785 (5th Cir. 1980). GAB's petition for rehearing en banc was granted, and the panel opinion was vacated. 622 F.2d 1226 (5th Cir. 1980).

The en banc court faces only two issues: ² (1) whether the 180-day notice requirement is a jurisdictional prerequisite, so that the court is deprived of subject matter jurisdiction if the filing requirement is not met, or, on the other hand, whether the filing requirement is subject to equitable tolling; and (2) if the filing requirement is subject to equitable tolling, whether there is a genuine issue of fact with respect to equitable tolling in this case. We hold that the 180-day provision is a precondition to filing suit and is subject to equitable tolling. We hold also that there is a genuine issue of fact with respect to equitable tolling, and therefore that summary judgment was erroneously granted.

I. FACTS

On or about May 1, 1976, Coke was demoted from his position as general manager of GAB's Dallas, Texas, office to a position as adjuster. He was 55 years old at the time and was replaced by an employee who was under 40 years of age. Shortly after the demotion, Coke advised Mr. Biegert, an official of one of GAB's largest clients. Mr. Biegert, who knew Coke both professionally and personally, contacted GAB to obtain Coke's reinstatement. Mr. Biegert was assured by GAB that corrective action would be taken to reinstate Coke as manager. The first such contact occurred in May, 1976, but, when Coke was not reinstated, he again advised Biegert who again contacted GAB, who was again assured that Coke would be reinstated. Several more such conversations occurred between Biegert and GAB from May through August, 1976, and on each occasion Biegert was assured by GAB that Coke would be reinstated. On each occasion these assurances were passed along to Coke. Relying on GAB's representations, Coke believed he would be reinstated and did not at that time file the required notice with the Secretary of Labor. Finally, when no corrective action was taken, despite GAB's repeated representations to the contrary, Coke filed the required notice with the Secretary of Labor on December 29, 1976, within 180 days of the last assurance by GAB that Coke would be reinstated, but more than 180 days after the actual demotion on May 1, 1976.

II. EQUITABLE TOLLING OF THE NOTICE REQUIREMENT

GAB's primary argument in support of the district court's grant of summary judgment is that the 180-day filing requirement is a jurisdictional prerequisite, that failure to comply deprives the court of subject matter jurisdiction, and that the court thus has no jurisdiction to consider whether the time period should be tolled for some equitable reason. In addressing this issue, we discuss (1) the relevant Supreme Court cases, (2) the developing case law in the other circuit courts of appeal, (3) our own Fifth Circuit precedent, and (4) the legislative history. In our discussion we will refer not only to cases applying the 180-day notice requirement of ADEA, but also to cases arising under Title VII of the Civil Rights Act of 1964. ³ Because Title VII shares with ADEA a common purpose, i. e., elimination of discrimination in the workplace, because the statutory schemes are similar, and because both statutes require an almost identical filing with the appropriate agency within 180 days after the alleged discriminatory act, ⁴ both this circuit ⁵ and the Supreme Court ⁶ have considered cases arising under one statute to have value as precedent for cases arising under the other.

1. Relevant Supreme Court Cases

In Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972), the Supreme Court refused to read literally a related provision of Title VII involving the requirement to file a charge with EEOC. The district court had dismissed the complaint, regarding the requirement as jurisdictional, and the Tenth Circuit had affirmed. The Supreme Court reversed, rejecting the employer's argument for a literal interpretation, saying that it would simply add "an additional procedural technicality. Such technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process." 404 U.S. at 526-27, 92 S.Ct. at 618-19.

In International Union of Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976), the Supreme Court considered whether the comparable 180 day time period in the Title VII context would be tolled because plaintiff was pursuing a grievance procedure established under a collective bargaining agreement. The Supreme Court considered no less than five variations on the tolling argument. The Supreme Court rejected each argument, not on the basis that the 180 day period was jurisdictional, but after consideration of the merits of whether or not the pursuit of grievance procedures should toll the running of the limitations period. The court relied on two of its previous decisions Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), where the Court had held that a Title VII claim was separate and independent from a contract claim under the collective bargaining agreement and therefore that the Title VII claim was not foreclosed by the previous final arbitration under the grievance procedures; and Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), which had held that a Title VII claim was separate and independent from a § 1981 claim ⁷ and that filing the Title VII charge with EEOC did not toll the statute of limitations applicable to the § 1981 suit. The Court also distinguished Burnett v. New York Central R. Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965), a prior Supreme Court case involving the tolling of a statute of limitations. The Court noted in footnote ten that the plaintiff had not claimed that she had been "prevented from asserting" her rights, thus implying that that classic tolling situation would be available. 429 U.S. at 237, n. 10, 97 S.Ct. at 447, n. 10. Furthermore, although the Court did use the label "jurisdictional prerequisite" on one occasion, it used the term "limitations period" and other terms usually associated with statutes of limitation throughout the opinion. In fact, one of the holdings was that the expanded 180 day "limitations period," enacted by the 1972 amendments, was retroactive. ⁸ In so holding, the court quoted from Chase Securities Corp. v. Donaldson, 325 U.S. 304, 315-16, 65 S.Ct. 1137, 1142-43, 89 L.Ed. 1628 (1945): "(C)ertainly it cannot be said that lifting the bar of a statute of limitation so as to restore a remedy lost through mere lapse of time is per se an offense against the Fourteenth Amendment." We are not alone in reading Robbins & Myers as implying that equitable tolling is permissible; the Second Circuit, ⁹ the Third Circuit ¹⁰ and our own Chappell case, supra, have read Robbins & Myers similarly. The recent Supreme Court case of Delaware State College v. Ricks, --- U.S. ----, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), contains a similar characterization of Robbins & Myers :

As to the latter argument, we already have held that the pendency of a grievance, or some other method of collateral review of an employment decision, does not toll the running of the limitations periods. International Union of Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229 (97 S.Ct. 441, 50 L.Ed.2d 427) (1976) ¹⁴ The existence of careful procedures to assure fairness in the tenure decision should not obscure the principle that limitations periods normally commence when the employer's decision is made. Cf. id., at 234-235 (97 S.Ct. at 446). ¹⁵

15. We do not suggest that aspirants for academic tenure should ignore available opportunities to request reconsideration. Mere requests to reconsider, however, cannot extend the limitations periods applicable to the civil rights laws.

14. See also B. Schlei & P. Grossman, Employment...