Hargett v. Valley Federal Sav. Bank, s. 94-6254

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Citation60 F.3d 754
Docket NumberNos. 94-6254,94-6368,s. 94-6254
Parties68 Fair Empl.Prac.Cas. (BNA) 852, 66 Empl. Prac. Dec. P 43,661, 32 Fed.R.Serv.3d 1349 Alpha W. HARGETT, III, Plaintiff-Appellant, v. VALLEY FEDERAL SAVINGS BANK, Defendant-Appellee.
Decision Date04 August 1995

Gregory O. Wiggins, Robert L. Wiggins, Jr., Gordon Dilberman Wiggins & Childs, Birmingham, AL, for appellant.

Albert J. Trousdale, II, Almon & McAlister, Tuscumbia, AL, for appellee.

Appeals from the United States District Court for the Northern District of Alabama.

Before CARNES, Circuit Judge, JOHNSON, Senior Circuit Judge, and HOBBS *, Senior District Judge.

HOBBS, Senior District Judge:

This consolidated appeal arises from two EEOC claims filed respectively before Judge Blackburn and Judge Hancock in the Northern District of Alabama. The appeal requires determinations whether the age discrimination claim, which was filed before Judge Blackburn, and the retaliation claim, which was filed before Judge Hancock, were timely filed with the EEOC.

Alpha W. Hargett ("Hargett") filed the age discrimination claim and the retaliation claim against his former employer, the Valley Federal Savings Bank ("Valley"). Hargett appeals Judge Hancock's order granting Valley's Motion for Summary Judgment in the retaliation action. Hargett also appeals the following orders in the case before Judge Blackburn: the order denying Hargett's Motion to Amend his complaint; the order granting Valley's Motion for Leave to Amend its answer; and the portion of Judge Blackburn's order granting Valley's Motion for Summary Judgment in which the court held that Hargett's EEOC charge alleging age discrimination was untimely filed. 1 For the reasons hereinafter stated, we affirm the decisions of Judge Blackburn and reverse the decision of Judge Hancock.

I. STATEMENT OF THE CASE

A. FACTS

Valley employed Hargett, on June 13, 1990, as a probationary employee. Hargett has had banking experience in the conventional home mortgage market, and Valley hired him expecting that business in the conventional home mortgage market would improve, although it had been in a state of depression in the area since 1989. Hargett was laid off on November 15, 1990, a few days after his forty-first birthday. 2 Valley advised him that a continuation of the depressed market caused his termination.

In early 1991, Hargett returned to Valley on personal business. He found that Regina Richards, age 31, was occupying his former office and purportedly was performing his former duties. On November 15, 1991, Hargett filed an EEOC "Intake Questionnaire," representing that Valley had discriminated against him on the basis of his age on November 15, 1990. On February 11, 1992, Hargett filed a sworn charge of discrimination with the EEOC alleging discrimination on the basis of age and sex, and citing November 15, 1990, as the date of the most recent discrimination. On April 15, 1992, Hargett wrote Frank Donsbach ("Donsbach"), the Senior Vice-President at Valley, requesting reinstatement. Donsbach replied on April 21, 1992, informing Hargett that they were seeking to hire persons with outside loan experience, but that he was not a candidate for employment with Valley. On May 20, 1992, Hargett forwarded a newspaper clipping dated May 10, 1992, to an EEOC investigator, calling to his attention that Valley had recently hired Steve Nesbitt into a loan officer's position. On September 25, 1992, Hargett filed his age discrimination claim in district court.

On May 19, 1993, in aid of his age discrimination suit, Hargett deposed Donsbach, Valley's corporate representative and Vice-President. Donsbach's deposition testimony was as follows:

Q. Would you consider him [Hargett] for re-employment?

A. Probably not.

Q. Why is that?

A. Mainly because of what's going on here, I guess.

Q. When he filed the EEOC Charge, does that automatically knock Mr. Hargett out of being considered for re-employment.

A. I don't know.

Q. Well, did it play a role?

A. It probably did.

(Donsbach Dep. at 34).

B. PROCEDURAL HISTORY

Hargett's pro se age discrimination suit alleged age discrimination, in violation of 29 U.S.C. Sec. 621 et seq. The case was assigned to Judge Blackburn. Once Hargett retained counsel, he amended the complaint on December 31, 1992. The amended complaint alleged that Valley discriminated against Hargett on the basis of age in "layoff, recall from layoff, job assignments ... as well as other terms and conditions and privileges of employment." Valley filed an amended answer on January 26, 1993, in which it admitted the allegations contained in paragraph two of the amended complaint which read as follows:

Plaintiff has fulfilled all conditions precedent to the institution of this action under the Age Discrimination In Employment Act of 1967, as amended, 29 U.S.C. Sec. 621 et seq. The Equal Employment Opportunity Commission attempted conciliation of the age discrimination charge. Plaintiff timely filed suit within ninety days of his receipt of the Notice of Right to Sue and within two years of the occurrence of the last discriminatory act.

On May 17, 1993, Valley moved for summary judgment as to the merits and untimeliness of Hargett's first EEOC charge and submitted its brief and supporting documentation thereto on July 2, 1993.

On July 2, 1993, Valley moved to amend its answer to incorporate the defense of the statute of limitations, asserting that Hargett failed to timely file a charge of discrimination with the EEOC within the time prescribed by 29 U.S.C. Sec. 626 and failed to fulfill all conditions precedent to the maintenance of the action.

The pretrial conference before Judge Blackburn was held on July 6, 1993. Judge Blackburn entered the proposed pretrial order, which counsel for the parties had drafted and submitted to her. Under paragraph "5(f)" of the pretrial order, Valley included the defense that Hargett's EEOC charge was untimely. Although Hargett contends that Donsbach's deposition testimony on May 19, 1993, shows that Valley had retaliated against him, he did not include the retaliation claim in the pretrial order, nor did he represent to the court at the pretrial conference that he intended to assert such a claim. The trial before Judge Blackburn was scheduled for September 27, 1993.

On July 5, 1993, Hargett filed a new EEOC charge alleging retaliation against Valley. The EEOC issued a right to sue letter on August 26, 1993. On September 17, 1993, Hargett commenced his retaliation suit in district court, and the case was assigned to Judge Hancock.

On December 6, 1993, Hargett filed a motion for consolidation before Judge Hancock. On December 7, 1993, Judge Hancock ruled that Hargett should have filed his consolidation motion before Judge Blackburn, rather than before Judge Hancock. Hargett refiled his motion to consolidate on December 13, 1993, with Judge Blackburn.

Valley entered its first appearance in the action before Judge Hancock on January 4, 1994, in a motion to dismiss or in the alternative for summary judgment, contending that the EEOC charge and suit were untimely. On January 4, 1994, Valley filed an objection to the consolidation in Judge Blackburn's case and sought to delay Judge Blackburn's ruling on consolidation until Judge Hancock had considered Valley's pending motion to dismiss or in the alternative for summary judgment.

On February 3, 1994, Hargett filed a "cross motion for summary judgment" before Judge Hancock in his retaliation suit. Judge Blackburn stayed consideration of the consolidation issue, which was ultimately treated as moot when Judge Hancock held that Hargett's retaliation claim was untimely filed. Judge Hancock granted Valley's motion for summary judgment on February 25, 1994, on two grounds. First, Judge Hancock ruled that Hargett became aware of facts sufficient to place him on notice of a potential retaliation claim by the April 21, 1992, correspondence to him from Valley, confirming the bank's efforts to employ people with outside loan experience. Accordingly, Judge Hancock held that Hargett's EEOC retaliation charge was untimely, as it was not filed within 180 days of that time. Second, Judge Hancock held that Hargett's independent retaliation action could not draw on ancillary jurisdiction of the age discrimination case to support it because the age discrimination case was not properly before him.

On March 9, 1994, Hargett filed a motion to amend the complaint to add the retaliation claim in the case before Judge Blackburn. Judge Blackburn issued a memorandum opinion and order denying the motion on March 30, 1994. The court noted that Hargett failed to include in the pretrial order his retaliation claim, of which he was aware in May, 1993. Additionally, because Hargett had not timely filed his age discrimination claim to which the retaliation claim could otherwise append, the district court denied Hargett's motion for leave to amend.

On March 30, 1994, Judge Blackburn also issued a separate memorandum opinion granting Valley's motion to amend its answer, which Valley had filed on July 2, 1993. On the same day, Valley filed its amended answer, and Judge Blackburn granted Valley's motion for summary judgment based on the merits that Hargett failed to make a prima facie case of age discrimination and that Valley had articulated a legitimate, non-discriminatory reason for Hargett's discharge. Judge Blackburn also stated that Hargett's failure to timely file a charge of age discrimination precluded his suit altogether.

II. STATEMENT OF THE ISSUES

1. Did Judge Blackburn err in holding that Hargett's claim alleging age discrimination in lay off was untimely filed.

2. Did Judge Blackburn abuse her discretion by denying Hargett's motion to amend his age discrimination case to add a retaliation claim.

3. Did Judge Blackburn abuse her discretion by allowing the defendant Valley to amend its answer to assert the defense of ...

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