Heideman v. PFL, Inc.

• Decision Date: 31 July 1990
• Docket Number: No. 89-1645,89-1645
• Citation: 904 F.2d 1262
• Parties: 53 Fair Empl.Prac.Cas. 92, 53 Empl. Prac. Dec. P 40,009 Leo HEIDEMAN and Shirley Heideman, Appellants, v. PFL, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1262

904 F.2d 1262

53 Fair Empl.Prac.Cas. 92, 53 Empl. Prac.

Dec. P 40,009

Leo HEIDEMAN and Shirley Heideman, Appellants, v. PFL, INC., Appellee.

No. 89-1645.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 16, 1990.

Decided June 5, 1990.

Rehearing and Rehearing En Banc Denied July 31, 1990.

Dennis E. Egan, Kansas City, Mo., for appellants.

John F. Wymer, III, Atlanta, Ga., for appellee.

Before ARNOLD and BOWMAN, Circuit Judges, and STROM, ^* District Judge.

BOWMAN, Circuit Judge.

Leo and Shirley Heideman appeal from an order of the District Court ¹ granting summary judgment in favor of PFL, Inc., on the Heidemans' age discrimination claims relating to Leo Heideman's discharge by his employer PFL. Heideman v. PFL, Inc., 710 F.Supp. 711 (W.D.Mo.1989). We affirm.

Leo Heideman, who was born in 1926, was employed by PFL, ² a wholesale food distributor headquartered in Duluth, Minnesota, from 1964 until his discharge in 1979. During most of that time, his office was in his home in Kansas City. Late in 1978, at which time Heideman held the position of vice president of sales for the central division, he was informed by Carl Hill, PFL's senior vice president of marketing and sales, that, if he wished to stay with the company, he would have to take a demotion to the position of regional manager and immediately relocate to Memphis, Tennessee. His salary would not be cut. Heideman agreed, and was replaced by Ed Korkki, born in 1940. On June 1, 1979, soon after he moved permanently to Memphis, Heideman was fired. John Parr, the company's vice president of sales, told Heideman that he did not fit Carl Hill's plans. Heideman, dissatisfied with that explanation, wanted someone at PFL to tell him why he was fired. He attempted unsuccessfully to contact company executives, seeking clarification. He visited the offices of the National Labor Relations Board (NLRB) in Memphis, where he says he was told the company did not have to give him a reason for termination. Heideman claims that he was not told of the protection afforded employees over forty years old under the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. Secs. 621-634. He also met with a Memphis lawyer, whose name Heideman does not recall. The lawyer confirmed that the law did not require PFL to give Heideman a reason for discharge. The lawyer offered to pursue the matter, but Heideman declined because of the cost. Heideman received a letter dated June 12, 1979, from Jeno Palucci, chairman of the board of PFL, intimating that Heideman was fired because he had not worked hard enough. Heideman's pursuit of the truth ended there.

On August 29, 1986, having returned to Kansas City to live, Heideman received by mail a copy of a PFL memorandum dated December 21, 1978, a date just prior to his demotion. It was sent to him by Larry Williams, a former PFL employee who had successfully settled an age discrimination suit against PFL. This "smoking gun" memorandum, from Carl Hill to Dick Jones, president of PFL, described a policy designed to rid the company of older managers and articulated the characteristics that made such employees a liability to the company. It included a handwritten instruction (author not established) to "Read and destroy."

On September 5, 1986, Heideman filed a charge of age discrimination against PFL with the Equal Employment Opportunity Commission (EEOC). On November 25, 1987, the Heidemans filed suit in Jackson County, Missouri, Circuit Court. PFL removed the case to federal court.

The Heidemans' complaint sounded in five counts: one count each under the ADEA and the Employee Retirement Income Security Act (ERISA), and three state common law counts--fraud, intentional infliction of emotional distress, and Mrs. Heideman's claim for loss of consortium. The District Court, on motion of PFL, granted summary judgment in favor of the company on all counts. The court found that the Heidemans had failed to file the ADEA charge with the EEOC, and the lawsuit on the remaining counts, within the applicable statutes of limitations. The District Court also determined that equitable tolling to extend the limitations periods was inappropriate in this case. Although PFL's conduct toward Heideman and other older employees appears to have been egregious, we find no error in the conclusions of the District Court.

The parties do not agree on the correct standard of review in this case. In connection with that difference of opinion, we have before us appellants' motion to strike, filed after oral argument, which we agreed to take with the case.

On February 15, 1990, one day before oral argument in this case, PFL submitted what it called a "supplemental letter brief." PFL indicated that it had misstated the applicable standard of appellate review in its main brief and suggested what it believes is the proper standard. On March 21, 1990, counsel for the Heidemans moved to strike that letter and asked us not to consider it. The unusual contention, in essence, is that PFL's supplemental argument was neither raised nor considered below, so it should not be considered on appeal absent extraordinary circumstances. To our knowledge, no appellate court requires issues concerning its own standard of review to be raised in the trial court, and we find the suggestion that this is necessary to be entirely without merit. Appellants' motion is denied.

We are not persuaded, however, by the argument PFL makes in its supplemental brief. We review the grant of a motion for summary judgment under the same standard applied by the district court. McCuen v. Polk County, Iowa, 893 F.2d 172, 173 (8th Cir.1990) (citing Kegel v. Runnels, 793 F.2d 924, 926 (8th Cir.1986)); Elbe v. Yankton Indep. School Dist. No. 1, 714 F.2d 848, 850 (8th Cir.1983); see Fed.R.Civ.P. 56(c). To affirm the district court "we must agree that there is no genuine issue of material fact, viewing the facts in the light most favorable to the non-moving party, and that the moving party is entitled to judgment as a matter of law." McCuen, 893 F.2d at 173.

PFL's argument is that we should view the District Court proceeding in this case not as a hearing on a motion for summary judgment but as a trial on the factual issues of equitable tolling. See Hrzenak v. White-Westinghouse Appliance Co., 682 F.2d 714, 718 (8th Cir.1982). If we were to do so, we could not reverse unless we found the District Court's fact-finding to be clearly erroneous. Id. In Hrzenak, however, the authority upon which PFL bases its argument, this Court found that "both parties treated the proceeding as a trial on the factual issues underlying [appellant's] claim for equitable tolling." Id. That is not the situation here. The fact that the parties here stipulated that depositions should be regarded as personal testimony under oath does not, as PFL suggests, convert argument on the summary judgment motion into a trial. At the oral argument of this appeal, counsel for the Heidemans emphasized that it was not his intent to waive jury trial on the issue of equitable tolling by defending against PFL's summary judgment motion, and there is nothing in the record to persuade us otherwise. We therefore will review this matter under the same summary judgment standard that the District Court used in reaching its decision.

In its order, the District Court made a thorough review of recent Supreme Court decisions dealing with Rule 56(c). Heideman, 710 F.Supp. at 713-14; see Celotex Corp. v. Catrett, 477 U.S. 317, 322-27, 106 S.Ct. 2548, 2552-55, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-55, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986); Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). To restate briefly the teaching of those cases, summary judgment is appropriate when there remains no genuine issue of material fact upon which a reasonable jury could find in favor of the nonmoving party. While the moving party on a motion for summary judgment is responsible for demonstrating to the court why there is no genuine issue of material fact, the nonmoving party must go beyond the face of his complaint to show that a rational jury could return a verdict in his favor. We hold, as did the District Court, that the Heidemans did not make a sufficient showing to withstand PFL's motion for summary judgment on statute of limitations grounds.

Each of the counts in this suit is subject to a statutory limitations period. ³ As the District Court determined, and as we agree, the Heidemans filed their lawsuit outside the limitations period on all counts, and Leo Heideman's age discrimination charge with the EEOC, prerequisite to suit under the ADEA, was lodged well beyond the permitted 180 days after the discriminatory act. See 29 U.S.C. Sec. 626(d) (1982). But because none of these statutes of limitations, including the 180-day limit under the ADEA, is jurisdictional, they all may be extended by equitable tolling. With respect to the ADEA, see EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 123-24, 108 S.Ct. 1666, 1675-76, 100 L.Ed.2d 96 (1988) (quoting Oscar Mayer & Co. v. Evans, 441 U.S. 750, 755, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979)) ("[T]he filing provisions of the ADEA and Title VII are 'virtually in haec verba,' the former having been patterned after the latter."); Zipes v. Trans World Airlines, 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982) ("We hold that filing a timely charge of discrimination with the EEOC [under Title VII] is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling."); see also Walker v. Saint Anthony's Medical Center, 881 F.2d 554, 556-57 (8th Cir.1989) ("[T]he timely filing of a charge with the EEOC [under the ADEA] is not a jurisdictional requirement and...