Coke v. General Adjustment Bureau, Inc.

• Decision Date: 07 May 1980
• Docket Number: No. 77-2874,77-2874
• Parties: 22 Fair Empl.Prac.Cas. 1352, 23 Empl. Prac. Dec. P 30,906 W. B. COKE, Jr., Plaintiff-Appellant, v. GENERAL ADJUSTMENT BUREAU, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 785

616 F.2d 785

22 Fair Empl.Prac.Cas. 1352,

23 Empl. Prac. Dec. P 30,906

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

No. 77-2874.

United States Court of Appeals, Fifth Circuit.

May 7, 1980.

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

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

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

Before GOLDBERG, FAY and ANDERSON, Circuit Judges.

GOLDBERG, Circuit Judge:

Under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.A. §§ 621-34 (West 1975) (amended 1978), an aggrieved employee may commence suit against his employer for age discrimination only upon filing a notice of intent to sue with the Secretary of Labor within 180 days after the occurrence of the alleged unlawful act. ¹ This appeal presents two questions about the meaning and nature of this notice requirement. We are asked to determine on what date the alleged unlawful act triggering the running of the notice requirement occurs when an employer, following an alleged discriminatory demotion, makes representations that the employee will be reinstated. We are also asked to decide whether the notice requirement is an absolute jurisdictional prerequisite to suit so that it cannot be equitably tolled when an employee's delay in filing notice is due to reliance on his employer's misrepresentations that he will be reinstated.

I.

On or about May 1, 1976, W. B. Coke, Jr., was informed by his employer, General Adjustment Bureau, Inc. (GAB), that he was demoted from the position of general manager of the company's Dallas casualty office to the position of adjuster. Coke immediately assumed the new position and began receiving reduced compensation. Coke was 55 years old at the time and was replaced by an employee under 40 years of age.

Shortly after the demotion, Coke notified an official of a major client of GAB that he had been demoted and asked the official to seek his reinstatement. The official complied with Coke's request, and in May, 1976, and on several other occasions through August, 1976, GAB represented to the official that it would take corrective action to restore Coke to his former position. After each occasion, the official informed Coke of GAB's representations.

Allegedly relying on his employer's statements of intent to reinstate him, Coke delayed filing notice of intent to sue under the ADEA. In August, 1976, however, after several months of inaction on the part of the company, Coke concluded that GAB had misrepresented its intent to reinstate him. He filed notice of intent to sue with the Department of Labor on or about December 29, 1976, more than 240 days after the alleged demotion occurred but within 180 days of the time Coke claims he first learned of GAB's alleged misrepresentations.

Coke then commenced this action against his employer. He appeals from the district court's summary judgment which held that his suit was barred by 29 U.S.C. § 626(d)(1) because his notice to the Secretary of Labor of his intent to sue was given more than 180 days after the alleged violation occurred.

II.

Appellant claims that the district court erred in granting summary judgment on the ground that his suit was time-barred by § 626(d)(1). Appellant argues that his notice was timely because the 180-day period did not begin to run until August, 1976, when he first reasonably concluded that his employer had unequivocably and finally demoted him. Alternatively, appellant contends that if the 180-day period did begin to run from May 1, 1976, the day he received formal notice of the demotion, the 180-day notice requirement should be equitably tolled or modified because his delay in filing was caused by his employer's misrepresentations.

A. DATE OF OCCURRENCE OF ALLEGED UNLAWFUL PRACTICE

We cannot accept appellant's contention that the 180-day time period for notifying the Secretary of Labor of his intent to sue did not begin to run until August, 1976, the time appellant claims he first reasonably concluded that the demotion was "unequivocal and final." Appellant concedes in his complaint that he was demoted on or about May 1, 1976. At that time, not only did he receive formal notice of his demotion but he was unequivocably demoted: he immediately assumed the new position and began receiving reduced pay. We fail to see how the possibility of reinstatement can alter the date of occurrence of the alleged unlawful act, for uncertainty over whether an employer will take steps to remedy an alleged unlawful practice does not render the occurrence of the alleged unlawful practice any less certain.

Although we find no ADEA cases directly on point, the Supreme Court has addressed a related situation in the context of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e-2000e-17 (West 1974). ² In Electrical Workers Local 790 v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976), an employee and her union asserted that her complaint filed with the Equal Employment Opportunity Commission was timely because the date on which the alleged unlawful employment practice occurred was not the date of her discharge but rather the date on which grievance-arbitration procedures conducted pursuant to a collective bargaining agreement had been concluded. Petitioners asserted that the discharge was only "tentative" and "non-final" until the later date. Id. at 234, 97 S.Ct. at 446. The Supreme Court flatly rejected this contention because it was evident, and the parties had understood, that the employee had been fired as of the earlier date: "She stopped work and ceased receiving pay and benefits as of that date." Id. Similarly even though Coke may have anticipated reinstatement, it is obvious, and indeed appellant concedes, that he was demoted on or about May 1, 1976: As of that date he ceased working at the higher status and higher paying position.

Because appellant has not claimed that at the time of his demotion he was unaware either of the effective date of his demotion or of the discriminatory motivations behind the demotion, his reliance on two of our previous decisions is misplaced. In Reeb v Economic Opportunity Atlanta, Inc., 516 F.2d 924 (1976), we held that the Title VII notice requirement does not begin to run until the employee knew or should have known of the facts that would support a charge of discrimination. Id. at 931. Assuming arguendo that the same standard applies in ADEA cases, see Charlier v. S. C. Johnson & Son, Inc., 556 F.2d 761 (5th Cir. 1977), we do not see its relevance, for appellant does not contend that he failed to learn until August, 1976, that age had been the reason behind his demotion. Rather, appellant simply contends that he did not know until August that his employer would not remedy the previous alleged unlawful act.

The second case on which appellant relies is Clark v. West Chemical Products, Inc., 557 F.2d 1155 (5th Cir. 1977), in which we held that summary judgment had been incorrectly granted because there was a genuine factual issue as to when an alleged unlawful discharge, triggering the running of the ADEA notice period, had occurred. The date of occurrence was in dispute because the employee, after receiving oral notice of discharge, nevertheless apparently continued to work for, and receive sales commissions from, his employer until he received a written notice of termination. As we have previously stated, here there was no ambiguity as to the operative date of the demotion since on or about May 1, 1976, appellant received formal notification of the demotion, immediately began working at the lower status job and immediately began receiving a reduction in pay. Thus Clark is not relevant to the issue before us.

We therefore hold that when an employee, at the time of demotion, has knowledge both of the effective date of the demotion and the facts that would reasonably lead him to conclude that the demotion was discriminatorily based, the statutory notice period begins to run from the effective date and an employee's uncertainty over whether his employer will reinstate him does not alter the date of occurrence of the alleged unlawful act. Here, the statutory notice period began to run on or about May 1, 1976, since that is the time the alleged unlawful act of which appellant complains occurred. Cf. Wagner v. Sperry Univac, Div. of Sperry Rand Corp., 458 F.Supp. 505, 512 (E.D.Penn.1978) (employee's uncertainty over possible rehiring did not prevent 180-day period from running).

B. EQUITABLE TOLLING OF THE NOTICE REQUIREMENT

1. Because appellant filed his notice of intent to sue with the Secretary of Labor more than 180 days after the date of the alleged unlawful act, his suit is time-barred unless the notice requirement is subject to equitable modification. This Circuit has never decided whether the 180-day filing period can be equitably modified. We have repeatedly pretermitted the issue or held the equities not strong enough to warrant modification even assuming it could be done. See Templeton v. Western Union Telegraph Co., 607 F.2d 89 (5th Cir. 1979) (facts did not justify tolling even if available); Quina v. Owens-Corning Fiberglas Corp., 575 F.2d 1115 (5th Cir. 1978) (ignorance of ADEA rights insufficient to justify tolling even if available); Thomas v. E. I. DuPont de Nemours & Co., 574 F.2d 1324 (5th Cir. 1978) (trial court instructed to decide issue on remand only if necessary); Adams v. Federal Signal Corp., 559 F.2d 433 (5th Cir. 1977) (facts did not justify tolling even if available); Charlier v. S. C. Johnson & Son, Inc., 556 F.2d 761 (5th Cir. 1977) (trial court instructed to decide issue on remand only if necessary); Edwards v. Kaiser Aluminum & Chemical Sales, Inc., 515 F.2d 1195 (5th Cir. 1975) (tolling issue expressly pretermitted); Powell v. Southwestern Bell...