E.E.O.C. v. Kentucky State Police Dept.

• Citation: 80 F.3d 1086
• Decision Date: 01 April 1996
• Docket Number: 94-6049,Nos. 94-5850,94-6050 and 94-6235,s. 94-5850
• Parties: 20 Employee Benefits Cas. 1078 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, Cross-Appellant (94-6049), v. KENTUCKY STATE POLICE DEPARTMENT, Kentucky Secretary of Justice, Commissioner of Kentucky State Police Department, Defendants-Appellants (94-5850), Cross-Appellees, Commonwealth of Kentucky, Defendant-Appellee, Board of Trustees of Kentucky Retirement Systems, Defendants Third Party, Plaintiffs-Appellees, George E. Arflack, et al., Third Party Defendants-Appellees, Harold Kinman, Gilbert Baxter, Louise Bailey, Estate of Troy Bailey, Third Party Defendants-Appellants (94-6235), Tyndale Brown, Appellant (94-6050).
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1086

80 F.3d 1086

20 Employee Benefits Cas. 1078

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, Cross-Appellant (94-6049), v. KENTUCKY STATE POLICE DEPARTMENT, Kentucky Secretary of

Justice, Commissioner of Kentucky State Police

Department, Defendants-Appellants

(94-5850), Cross-Appellees,

Commonwealth of Kentucky, Defendant-Appellee,

Board of Trustees of Kentucky Retirement Systems, Defendants

Third Party, Plaintiffs-Appellees,

George E. Arflack, et al., Third Party Defendants-Appellees,

Harold Kinman, Gilbert Baxter, Louise Bailey, Estate of Troy

Bailey, Third Party Defendants-Appellants (94-6235),

Tyndale Brown, Appellant (94-6050).

Nos. 94-5850, 94-6049, 94-6050 and 94-6235.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 8, 1996.

Decided April 1, 1996.

On Appeal from the United States District Court for the Eastern District of Kentucky; William O. Bertelsman, Chief Judge.

Philip B. Sklover, Johnny J. Butler, E.E.O.C., Washington, DC, George C. Bradley, Joseph Ray Terry, Terry Beck, E.E.O.C., Memphis, TN, and Mary L. Clark (argued and briefed), Office of Gen. Counsel, Washington, DC, for E.E.O.C.

Gary R. Hillerich (argued and briefed), Louisville, KY, and Frank E. Haddad, Jr., Louisville, KY, for Kentucky State Police Dept., Kentucky Secretary of Justice, and Com'r of Kentucky State Police Dept.

William B. Pettus, Asst. Atty. Gen., Frankfort, KY, for the Com. of Kentucky.

Robert W. Kellerman (briefed), and William E. Johnson, Stoll, Keenon & Park, for Bd. of Trustees of Kentucky Retirement Systems.

William Henry Van Herp (briefed), Van Herp & Howell, Covington, KY, for Arthur Emmons, Harold Kinman, Gilbert Baxter, Louise Bailey, James Powell and Samuel E. King.

Christopher M. Hill (briefed), William D. Kirkland, and Sarah M. Jackson, McBrayer, McGinnis, Leslie & Kirkland, Frankfort, KY, for James B. Jones, Virgil K. Miller, Leo Reynolds, Algin Roberts, Winston Kuykendall, Edward L. Wright and Paul M. Smith.

David Van Horn (briefed), Lexington, KY, for Erma Jean Laferty, John Miller and Kenneth D. Russell.

James M. Baker (briefed), Frankfort, KY, for Gail McCarty, James Henry Mayes Rose V. Mayes and William Starks.

George F. Rabe (briefed), Lexington, KY, for Willian G. Mullins.

Dave Whalin (briefed), Landrum & Shouse, Louisville, KY, for Bettye A. Sherrard.

George F. Rabe (briefed), Lexington, KY, for William G. Mullins.

Catesby Woodford, Miller, Griffin & Marks, Lexington, KY, and James E. Baker, Frankfort, KY, for Gail McCarty.

Richard Clay (briefed), Clay & Clay, Danville, KY, for Tyndale Brown.

Before: ENGEL, KENNEDY, and SUHRHEINRICH, Circuit Judges.

KENNEDY, Circuit Judge.

This case presents cross appeals from the District Court's judgment awarding relief to Kentucky state troopers mandatorily retired at age fifty-five under KY.REV.STAT. ANN. § 16.505(15) (Baldwin 1994). The Kentucky State Police Department ("KSP") contends that the District Court erred by tolling the statute of limitations for state troopers retired before October 19, 1981 and by excluding two memos that it claims gave troopers constructive notice of their rights under the Age Discrimination in Employment Act of 1967 ("ADEA"); it also asserts that the District Court erred in calculating back pay and other relief for the mandatorily retired officers. In its cross appeal, the Equal Employment Opportunity Commission ("EEOC") contends that the District Court erred when it refused to toll the statute of limitations for employees retired between April 6, 1978 and January 1, 1979; when it denied EEOC's motion to amend the names of troopers not included in the original complaint; and when it refused to award prejudgment interest for the entire back-pay period. For the following reasons, we shall affirm in part and reverse in part.

I

EEOC sued KSP and other defendants on August 29, 1984, alleging that KSP's policy of mandatorily retiring state troopers at age fifty-five violated the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623(a)(1). Following a bench trial, the District Court upheld Kentucky's mandatory retirement policy on the ground that, for state troopers, age constituted a bona fide occupational qualification. After reversal by this court, EEOC v. Kentucky State Police Dep't, 860 F.2d 665 (6th Cir.1988), cert. denied, 490 U.S. 1066, 109 S.Ct. 2066, 104 L.Ed.2d 631 (1989), ¹ the District Court entered judgment providing back pay and other relief to the officers mandatorily retired under the policy between October 19, 1981 and December 31, 1986. The District Court subsequently entered a judgment providing relief for officers retired between January 1, 1979 and October 19, 1981.

This appeal presents three main issues: whether the District Court appropriately tolled the statute of limitations; whether the District Court properly excluded two documents KSP offered to show that the officers had constructive knowledge of their rights under ADEA; and whether the District Court properly calculated the officers' back pay awards and other relief.

II

The first issue raised in this appeal concerns the District Court's decision to toll the statute of limitations for troopers retired before October 19, 1981. On March 28, 1983, two KSP officers challenged KSP's mandatory retirement policy by filing ADEA charges with the EEOC. The officers stated that they did not become aware of the legal grounds for their age discrimination claim until March 2, 1983, when the Supreme Court decided EEOC v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983), which held that Congress could constitutionally extend the protection of the Age Discrimination in Employment Act of 1967 to state and local government employees.

On the basis of the officers' complaints, EEOC brought an ADEA suit against KSP's mandatory retirement policy for state troopers on August 29, 1984. On July 3, 1989, EEOC filed a report with the District Court in which it acknowledged that it could only seek relief for state troopers mandatorily retired on or after October 19, 1981. EEOC reached this conclusion after choosing a two-year statute of limitations, which it believed was appropriate because KSP had not willfully violated the ADEA. EEOC added to the two-year limitations period a ten-month and ten-day period in which it tried to negotiate a voluntary settlement of the dispute; subtracting this combined amount of time from the August 29, 1984 complaint, the EEOC arrived at a cut-off date of October 19, 1981. During a February 23, 1990 status conference, however, EEOC learned that KSP had failed to post notices alerting employees to their rights under the ADEA. ² At that conference, EEOC also learned that KSP's employee manual specifically omitted any reference to age discrimination as a prohibited employment practice.

EEOC moved the District Court to toll equitably the statute of limitations to April 6, 1978, the date on which ADEA took effect for state and local government employees. The District Court referred the matter to a magistrate judge, who heard testimony on the issue of officers' actual or constructive knowledge of their rights under the ADEA. The various parties to the suit stipulated that the testimony of three mandatorily retired officers would be representative of the class of troopers retired before October 19, 1981. These troopers testified that they lacked actual or constructive knowledge of their rights to be free from age discrimination because they had never seen any ADEA notice posted by KSP or otherwise been informed by KSP of their rights, and that they had relied on the KSP employee manual's description of the mandatory retirement policy. The three officers also testified that they did not become aware of their rights until EEOC v. Wyoming was decided.

The District Court held that KSP's failure to post the required ADEA notices and its omission of a reference to age discrimination in its employee manual constituted "affirmative misleading conduct" sufficient to toll the statute of limitations until January 1, 1979. Nevertheless, the District Court declined to toll the limitations period beyond January 1, 1979 because that was the date EEOC had "plead all these years." ³

The District Court also denied EEOC's motion to amend its complaint to add three troopers retired after January 1, 1979 who did not learn of the suit until it was on remand. The EEOC had relied on the Kentucky Retirement Board (the "Board") for the names of potential claimants. The Board had not included the names of these three officers because each had retired before his fifty-fifth birthday in reliance upon the mandatory policy. ⁴ In 1993, the District Court also denied EEOC's motion to amend its complaint to add six officers who had been mandatorily retired between April 6, 1978 and January 1, 1979. ⁵

How we resolve the tolling issue depends in part on our view of the District Court's decision to exclude two documents KSP offered to show troopers' constructive knowledge of their right to be free from age discrimination; because the troopers had such knowledge, KSP argued, the statute of limitations should not have been equitably tolled.

At a hearing on February 5, 1993, KSP sought to introduce two documents that, it claimed, showed that the troopers had constructive notice of their right to be free from age discrimination. The first document, dated April 3, 1978, was on the stationery of the Office of the Secretary of Kentucky's Department of Justice. The memo was entitled "Equal Employment Opportunity Policy," and it stated, in part:

2. All employees of the Department shall be treated impartially without regard to race, color, religion, national origin, sex, age, or handicap in rates of pay or other forms of compensation, promotions, upgrading, demotion, or transfer, lay off, termination, and selection for training programs within the Department.

Any Department position which warrants the application of the...