Dorsey v. Pinnacle Automation Co.

• Decision Date: 29 January 2002
• Docket Number: No. 01-1030.,No. 00-3558.,00-3558.,01-1030.
• Citation: 278 F.3d 830
• Parties: Alvin DORSEY, Jr.; James Greer; George Lewis; Cecil Isaac; William Blue; Vernon Gossett; Richard Camillo Appellants, v. PINNACLE AUTOMATION COMPANY, doing business as Alvey, Inc., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 830

278 F.3d 830

Alvin DORSEY, Jr.; James Greer; George Lewis; Cecil Isaac; William Blue; Vernon Gossett; Richard Camillo Appellants, v. PINNACLE AUTOMATION COMPANY, doing business as Alvey, Inc., Appellee.

No. 00-3558.

No. 01-1030.

United States Court of Appeals, Eighth Circuit.

Submitted: November 12, 2001.

Filed: January 29, 2002.

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Kristin F. Whittle, argued, St. Louis, MO, for appellant.

Clifford A. Godiner, argued, St. Louis, MO (Hope K. Abramov, on the brief), for appellee.

Before McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and SMITH,¹ District Judge.

SMITH, District Judge.

Alvin Dorsey and six co-plaintiffs (Appellants) appeal from the district court's² grant of summary judgment in favor of Pinnacle Automation Company d/b/a Alvey, Inc. ("Alvey") on their disparate treatment claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34 and the Missouri Human Rights Act ("MHRA"). Appellants also appeal the district court's award of attorney's fees. For the reasons discussed below, we affirm.

BACKGROUND

Appellants Alvin Dorsey, James Greer, George Lewis, Cecil Issac, William Blue, Vernon Gossett and Richard Camillo were shop employees of Alvey and, at the time of the challenged promotions, worked in four different departments: Material Handling, Electrical, Fabrication, and Final Assembly. This appeal involves seven separate promotion decisions made by Alvey between January 1996 and April 1999. Specifically, Appellants have challenged the following promotions: (1) Bryan Young, promoted in the Material Handling department on March 25, 1996(2) Brenda Floerchinger, promoted in the Electrical department on September 8, 1997, (3) Levi Johnson, promoted in the Fabrication department on July 8, 1996, (4) Kevin Dexter, promoted in the Sub-Assembly department on December 15, 1997, (5) Stefan Stover, promoted in the Final Assembly department on January 29, 1996, (6) James Thorn, promoted in the Final Assembly department on December 8, 1997, and (7) Kalman Bihary, promoted in the Final Assembly department on April 12, 1999. Each of the above individuals was below the age of forty at the time of their particular promotion. All of the promotions, although in different departments, were to the position of leadperson. Leadpersons receive approximately fifty-cents ($.50) per hour more than the employees working under them.

On October 1, 1998, Appellants filed separate identical charges of discrimination, each alleging discrimination on the basis of age in violation of the ADEA and MHRA. Each charge stated:

I believe that I have been discriminated against on the basis of my age (over 40) in violation of the Age Discrimination in Employment Act and the Missouri Human Rights Act because younger (under 40) second tier employees that have considerably less seniority are consistently receiving wage increases greater than myself and all other similarly situated first tier, more senior, over 40 employees.

Appellants later filed a complaint in the district court, alleging violations of the ADEA and state law. On September 15, 2000, the district court granted Alvey's motion for summary judgment on all of the Appellants' ADEA claims. The court held that Appellants failed to file timely charges of discrimination with the EEOC for many of the challenged promotions and that the claims not barred by the statute of limitations lacked merit. The district court further held that Appellants failed to exhaust their administrative remedies with regard to their hostile work environment claims. Later, on November 28, 2000, the district court granted Respondent's motion for attorneys' fees. Appellants appeal, contending that summary judgment and the grant of attorneys' fees was improper.

DISCUSSION

We review a grant of summary judgment de novo. We apply the same standard as the district court and determine whether the record shows that no genuine issue as to any material fact exists and that the moving party is entitled to judgment as a matter of law. See Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1156 (8th Cir.1999); Fed.R. Civ. P. 56(c). We construe the factual record and all reasonable inferences from the record in the light most favorable to the party opposing summary judgment. See Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 775 (8th Cir.1995).

I.

We agree with the district court that Appellants' claims regarding several of Alvey's promotional decisions are time barred under the ADEA and MHRA. The ADEA makes it "unlawful for an employer... to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). Protection under the ADEA extends to persons age forty and older. 29 U.S.C. § 631. The ADEA requires the filing of an administrative charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") within 300 days of the act of discrimination, and the MHRA requires filing with the Missouri Commission on Human Rights within 180 days of the discriminatory act. 29 U.S.C. § 626(d)(2), Mo.Rev.Stat. § 213.075(1). Appellants filed their charges of discrimination on October 1, 1998. They challenge promotion decisions made by Alvey between January, 1996 and April, 1999. Applying the respective statutes of limitations, Plaintiff's claims for discriminatory acts that occurred prior to December 5, 1997 are time barred by the ADEA and claims for discriminatory acts that occurred prior to April 4, 1998 are time barred under the MHRA.

Appellants argue that the district court should have applied either the doctrine of equitable tolling or equitable estoppel to the 300 day limitations period under the ADEA. "The filing of a timely charge with the EEOC is not a jurisdictional prerequisite to a suit in federal court." Rather, it is a condition precedent and, "like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). This Court recently differentiated between the concepts of equitable estoppel and equitable tolling in Dring v. McDonnell Douglas Corp., 58 F.3d 1323, 1327-28 (8th Cir.1995).

The doctrine of equitable estoppel comes into play when "the employee's failure to file in a timely fashion is the consequence of either a deliberate design by the employer or of actions that the employer should unmistakably have understood would cause the employee to delay filing his charge." Dring, 58 F.3d at 1329 (quoting Kriegesmann v. Barry-Wehmiller Co., 739 F.2d 357, 358-59 (8th Cir. 1984)). The doctrine of equitable estoppel is invoked when a plaintiff is aware of his ADEA cause of action, but is "lulled or tricked into letting the EEOC filing deadline pass because of some employer misconduct." Dring, 58 F.3d at 1329. Outside of Appellants' contention that Alvey failed to communicate the leadperson promotions, they have presented no evidence of wrongdoing or misconduct on the part of Alvey. Moreover, to successfully apply the doctrine of equitable estoppel, Appellants must have been aware of a possible ADEA violation. Here, Appellants argue that they were not aware of a possible ADEA violation because Alvey failed to communicate the promotions and they were not aware that they had been passed over for promotion until well within the limitations period. Since Appellants did not know of Alvey's possible ADEA violation, it is impossible that they were "lulled" or "tricked" into not pursuing their rights. Equitable estoppel is not a proper basis for tolling the statute of limitations.

The doctrine of equitable tolling is appropriately applied "when the plaintiff, despite all due diligence, is unable to obtain vital information bearing on the existence of his claim." Id. at 1328 (quoting Chakonas v. City of Chicago, 42 F.3d 1132, 1135 (7th Cir.1994)). When applying this doctrine, a court must determine "whether a reasonable person in the plaintiff's position would have been aware" of promotions to leadperson. Dring, 58 F.3d at 1329. Appellants argue that they did not know of the promotions because the leadperson promotions and position openings were never posted or otherwise communicated to them and the challenged lead persons' job duties were never changed to demonstrate that they had been promoted. However, Appellants have stated in their affidavits that they heard rumors that younger people were promoted to leadperson, but still took no action. If Appellants had suspicions they should have exercised due diligence, in which case they would have easily confirmed the promotions. Likewise, in some cases, Appellants were aware that certain positions of leadperson had been vacant for a significant period of time, yet they did not inquire whether the opening had been filled. Again, Appellants should have asked whether the position had been filled and by whom. In this case, a reasonable person in Appellants' positions would have been aware of the promotions.

We hold therefore that Appellants' charges of discrimination are not subject to equitable estoppel or equitable tolling and the statute of limitations began to run as of the date of the promotions. Appellants are not entitled to relief for any employment decisions made before December 5, 1998 as they are barred by the 300-day statute of limitations under the ADEA, nor any claims before April 4, 1998 which are barred by the MHRA. Thus, Appellants claims as to the promotions of Stover, Johnson, Young and Floerchinger under ADEA are time barred. Likewise, Appellants' claims regarding the promotions of Stover, Johnson, Young, Floerchinger, Thorn and Dexter are time barred under MHRA. Remaining are the ADEA claims challenging the promotions of Thorn, Dexter and Bihary and the MHRA claim challenging the promotion of...