English v. Pabst Brewing Co., 86-3148

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation828 F.2d 1047
Docket NumberNo. 86-3148,86-3148
Parties44 Fair Empl.Prac.Cas. 1385, 44 Empl. Prac. Dec. P 37,387 C.M. ENGLISH, Plaintiff-Appellant, v. PABST BREWING COMPANY; PMP Fermentation Products, Inc., a wholly owned subsidiary of Pabst Brewing Company, Defendants-Appellees.
Decision Date15 September 1987

David Edmund Ralston, for plaintiff-appellant.

Thomas Paul Godar (John R. Sapp; Michael, Best & Friedrich; Milwaukee, Wis., Gwynn Radeker; Roberts, Stevens & Cogburn, P.A. Asheville, N.C., on brief), for defendants-appellees.

Before WIDENER, WILKINSON, and WILKINS, Circuit Judges.

WILKINSON, Circuit Judge:

C.M. English was employed by the Pabst Brewing Company as a sales representative. In February of 1982, Pabst informed English that his employment was to be terminated. English sued under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 621 et seq. The district court granted summary judgment to the defendant because English did not file his ADEA charge within the 180 day period imposed by the statute and because he failed to establish that the termination was based on his age. C.M. English v. Pabst Brewing Co., 645 F.Supp. 186 (W.D.N.C.1986). We affirm.

I.

At the time his employment with Pabst ended, English sold malt syrup and industrial chemicals to firms in the southeastern United States. English was sixty-five years old. Pabst told him upon his termination that it was restructuring its sales staff and product lines and that the field work previously handled by him would be handled primarily by telephone from the company's headquarters.

Six months later, in August of 1982, English had a chance encounter with Irvin Troy, his former sales supervisor. Accompanying Troy was Donald Lex, who had been hired by Pabst as a sales representative in July. Lex was twenty-five years old.

Roughly six months after this meeting--359 days after he was notified of his termination--English filed a charge of age discrimination with the EEOC. After filing his charge with the EEOC, English commenced this civil action. He alleged that Pabst had replaced him with a younger man and thus committed age discrimination. In granting Pabst's motion for summary judgment, the district court held that English's claim was time-barred by the provisions of Sec. 7(d) of the ADEA and that Lex was not English's replacement, but filled a position requiring different skills and expertise created in the company's reorganization.

II.

The ADEA requires that a plaintiff file a charge with the EEOC before filing a civil action; this charge must normally be filed within 180 days of the discriminatory practice. 29 U.S.C. Sec. 626(d). Where the charge is based on a job termination, the 180-day period runs from the date on which the plaintiff is notified of his termination. Felty v. Graves-Humphreys, 785 F.2d 516, 518-19 (4th Cir.1986); Price v. Litton Business Systems, 694 F.2d 963, 965 (4th Cir.1982). The limitation period facilitates the prompt resolution of disputes upon fresh recollections. It also reflects the point at which Congress has determined the prospect of litigation should presumptively be laid to rest.

Because the 180-day period is akin to a statute of limitations, rather than a jurisdictional prerequisite to filing suit, a plaintiff can obtain relief from it under the doctrines of equitable tolling and equitable estoppel. Vance v. Whirlpool Corp., 716 F.2d 1010, 1011-12 (4th Cir.1983). Equitable exceptions to the statutory limitations period should be sparingly applied, however. The certainty and repose these provisions confer will be lost if their application is up for grabs in every case. As the equitable exceptions to the charging period have been the subjects of some confusion--in the present case, for example, the parties used the terms equitable estoppel and equitable tolling interchangeably--we will review them briefly before applying them to the case before us.

The doctrines of equitable tolling and equitable estoppel have a common origin; they are based primarily on the view that a defendant should not be permitted to escape liability by engaging in misconduct that prevents the plaintiff from filing his or her claim on time. As the Supreme Court explained in Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 232-33, 79 S.Ct. 760, 761-62, 3 L.Ed.2d 770 (1959),

[N]o man may take advantage of his own wrong. Deeply rooted in our jurisprudence this principle has been applied in many diverse classes of cases by both law and equity courts and has frequently been employed to bar inequitable reliance on statutes of limitations.

Equitable tolling applies where the defendant has wrongfully deceived or misled the plaintiff in order to conceal the existence of a cause of action. See Lawson v. Burlington Industries, 683 F.2d 862, 864 (4th Cir.1982); Cerbone v. International Ladies' Garment Workers' Union, 768 F.2d 45, 48 (2d Cir.1985); Meyer v. Riegel Products Corp., 720 F.2d 303, 307-08 (3d Cir.1983). To invoke equitable tolling, the plaintiff must therefore show that the defendant attempted to mislead him and that the plaintiff reasonably relied on the misrepresentation by neglecting to file a timely charge. Lawson, 683 F.2d at 864; Coke v. General Adjustment Bureau, 640 F.2d 584, 595 (5th Cir.1981).

Equitable estoppel applies where, despite the plaintiff's knowledge of the facts, the defendant engages in intentional misconduct to cause the plaintiff to miss the filing deadline. Felty v. Graves-Humphreys, 818 F.2d 1126 (4th Cir.1987); Price, 694 F.2d at 965. See also Cerbone, 768 F.2d at 49-50; Dillman v. Combustion Engineering, 784 F.2d 57, 60-61 (2d Cir.1986). "The statute of limitations will not be tolled on the basis of equitable estoppel unless the employee's failure to file in timely fashion is the consequence either of 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." Price, 694 F.2d at 965.

III.

English seeks to invoke the principle of equitable tolling. He alleges that Pabst concealed material information from him in two ways: first, by failing to post the required notice about ADEA rights, and second, by giving him a pretextual reason for his termination. Neither allegation is supported by the facts in the summary judgment record, however.

A.

The ADEA requires an employer to post "in conspicuous places upon its premises a notice to be prepared or approved by the Equal Employment Opportunity Commission setting forth information as the Commission deems appropriate to effectuate the purposes of [the ADEA]." 29 U.S.C. Sec. 627. Such a notice must be prominently and accessibly placed. 29 U.S.C. Sec. 627; 29 C.F.R. Sec. 1627.10. If an employer violates the posting requirement, the charging period is tolled until the plaintiff "acquires actual knowledge of his rights or retains an attorney." Vance, 716 F.2d at 1013. In the present case, we believe the district court properly rejected plaintiff's argument that the statutory limitations period should be equitably tolled based on the defendant's noncompliance with the posting requirement:

Factually, plaintiff's argument in opposition to summary judgment on the nonposting ground for tolling of the statute of limitations leans upon the slender reed of the following sentence in plaintiff's own Affidavit: 'My employer had not posted information on the ADEA of which I was aware.' (Emphasis supplied.) This sentence simply does not create a genuine issue of material fact when juxtaposed against defendants' affidavits from present and former employees to the effect that proper posting had in fact been accomplished at the company's plant and corporate headquarters. Defendants, therefore, appear to have established proper posting.

English, 645 F.Supp. at 188. See Posey v. Skyline Corp., 702 F.2d 102 (7th Cir.1983) (summary judgment proper where defendant's testimony indicated that ADEA notice was posted and plaintiff stated only that he did not recall seeing one).

English argues that even if the notice was posted, the charging period should still be tolled because he did not read the notice. This argument misapprehends the nature of equitable tolling, which is based on the wrongdoing of the defendant. Hence, the district court properly rejected it. "If notice is properly posted and the employee does not see it or sees it but is still not aware of his rights, there will normally be no tolling of the filing period." McClinton v. Alabama By-Products Corp., 743 F.2d 1483, 1486 (11th Cir.1984); accord Hrzenak v. White-Westinghouse Appliance Co., 682 F.2d 714, 718-19 (8th Cir.1982).

English further argues that the district court erred in applying this rule to field salesmen who infrequently visit the company's offices. He refers us to the Fifth Circuit's decision in Charlier v. S.C. Johnson & Son, Inc., 556 F.2d 761 (5th Cir.1977), where the court of appeals remanded for a determination of whether a salesman who worked mainly in his home was adequately informed of his rights by an ADEA notice posted in a regional office. That decision was grounded in the court's understanding that the posting requirement imposes a broad obligation on employers to "provide employees with a meaningful opportunity of becoming aware of their ADEA rights." 556 F.2d at 764.

With respect, we do not adopt the interpretation of the posting requirement expressed in Charlier. It might well be desirable to require employers to send ADEA notices to traveling sales representatives and others who work off the company's premises. Congress might adopt such a requirement in the future. The terms of the present statute and its implementing regulation, however, require only that the notice be posted "in conspicuous places upon [the employer's] premises." 29 U.S.C. Sec. 627. Pabst complied with the terms of the statute. Notice was posted on...

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