Herman v. National Broadcasting Co., Inc.

• Decision Date: 29 October 1984
• Docket Number: No. 83-2834,83-2834
• Citation: 744 F.2d 604
• Parties: 35 Fair Empl.Prac.Cas. 1653, 35 Empl. Prac. Dec. P 34,679 Frank HERMAN and Frank Mullaney, Plaintiffs-Appellants, v. NATIONAL BROADCASTING COMPANY, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 604

744 F.2d 604

35 Fair Empl.Prac.Cas. 1653,

35 Empl. Prac. Dec. P 34,679

Frank HERMAN and Frank Mullaney, Plaintiffs-Appellants, v. NATIONAL BROADCASTING COMPANY, INC., Defendant-Appellee.

No. 83-2834.

United States Court of Appeals, Seventh Circuit.

Argued May 24, 1984.

Decided Sept. 26, 1984.

Rehearing and Rehearing En Banc Denied Oct. 29, 1984.

Bernard M. Mamet, Ltd., Chicago, Ill., for plaintiffs-appellants.

Philip C. Stahl, Reuben & Proctor, Chicago, Ill., for defendant-appellant.

Before PELL and ESCHBACH, Circuit Judges, and WYATT, Senior District Judge. ^*

ESCHBACH, Circuit Judge.

The issue presented is whether the district court properly granted summary judgment in favor of the National Broadcasting Company ("NBC") and against the plaintiffs alleging nonwillful and willful violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Secs. 621-634. We agree with the district court that the nonwillful claims are barred by the statute of limitations, but we reverse the award of summary judgment and we remand the case for further proceedings on the willful claims.

I.

The plaintiffs, Frank Herman and Frank Mullaney, were employed as film editors in the news department of NBC's Chicago station, WMAQ-TV. In the mid 1970's videotape replaced film as the means of capturing images. Accordingly, the film department was gradually eliminated as new electronic journalism ("E/J") positions were created. Employees who worked with film were not automatically transferred into E/J positions but, rather, had to apply for the jobs as they were created. The plaintiffs did apply for openings posted by NBC in 1976, 1977, and 1978. Herman and Mullaney, however, were not selected for those positions and, as the film operations were drawing to a close, were dismissed from their employment. Mullaney was 53 years old when he received notice of his termination on March 24, 1978; Herman was 58 when his termination notice arrived on April 28, 1978.

Believing that age played a role in NBC's decisions, the plaintiffs filed age-discrimination charges with the Department of Labor in May of 1978. Pursuant to a transfer of authority, see Reorganization Plan No. 1 of 1978, 92 Stat. 3781, the Equal Employment Opportunity Commission investigated the matter and as of September 21, 1979, believed the charges to have merit. A civil action was never brought by the Commission, however, and on May 2, 1980, the plaintiffs filed the complaint in this case.

II.

A suit alleging a nonwillful violation of the ADEA must be brought "within two years after the cause of action has accrued." 29 U.S.C. Sec. 255(a) (incorporated by 29 U.S.C. Sec. 626(e)(1)). Because both plaintiffs received termination notices by April 1978, see Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980), but did not bring suit until May 1980, NBC moved for summary judgment on the plaintiffs' nonwillful claims (Count I). Responding to the motion, the plaintiffs asserted that NBC's actions constitute a "continuing violation"--i.e., illegal discrimination occurs each time NBC hires a person other than the plaintiffs in an E/J position. The district court, holding that the "continuing violation doctrine is meaningless under the facts of this case," 569 F.Supp. 282, 286, granted NBC's motion.

We fully agree with the district court's observation that the plaintiffs' reaction to the motion for partial summary judgment was, in fact, unresponsive. A predicate for a civil suit under the ADEA is a charge (previously an intent-to-sue notice) filed with the appropriate administrative agency. 29 U.S.C. Sec. 626(d). Liberally construing the plaintiffs' charges in this case, see Dickerson v. DeLuxe Check Printers, Inc., 703 F.2d 276, 283 (8th Cir.1983), we find allegations regarding the terminations and events prior to the dismissals, but no mention is made of subsequent acts by NBC. In short, no post-termination decision or act of NBC was made the basis of an administrative charge. The most recent decision properly before the court, therefore, is NBC's decision to terminate Herman, which was made known to him in April of 1978. See Lawson v. Burlington Industries, Inc., 683 F.2d 862, 864 (4th Cir.), cert. denied, 459 U.S. 944, 103 S.Ct. 257, 74 L.Ed.2d 201 (1982) ("Each alleged discriminatory recall constitutes a separate and complete act by the defendant, which triggers a new 180 day period" for filing an administrative charge.); Scaramuzzo v. Glenmore Distilleries, 501 F.Supp. 727 729 (N.D.Ill.1980). This case was commenced more than two years after Herman and Mullaney received their dismissal notices and, absent any suggestion that the limitations period should be equitably modified, the district court correctly granted summary judgment in favor of NBC on the plaintiffs' nonwillful claims.

III.

Having eliminated nonwillful allegations from the case, NBC made a motion for summary judgment on the remaining claims of willful discrimination. ¹ To prove willfulness, a "plaintiff must show that the defendant's actions were knowing and voluntary and that he knew or reasonably should have known that those actions violated the ADEA." Syvock v. Milwaukee Boiler Manufacturing Co., 665 F.2d 149, 156 (7th Cir.1981). NBC, which posted ADEA notices and employed an ADEA compliance officer, was in no position to plead ignorance of the law. See also id. at 156 n. 10. Accordingly, NBC attacked the plaintiffs' central allegation--that age played a role in the plaintiffs' separation from NBC. ² To this end, NBC obtained from Willis Marshall, Director of Technical Operations and Engineering for WMAQ-TV, an affidavit stating that when he selected three E/J editors pursuant to a job posting in March 1978, he chose "the three best applicants" and "did not consider the ages of any of the applicants."

We believe that NBC's showing was insufficient to warrant summary judgment. It is the movant's burden to establish the absence of a genuine issue of material fact; if this burden is not met, the opposing party need not respond with evidentiary material. Adickes v. S.H. Kress and Company, 398 U.S. 144, 160, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970); Egger v. Phillips, 710 F.2d 292, 296 (7th Cir.) (en banc), cert. denied, --- U.S. ----, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983). NBC only submitted evidence indicating that age played no role in the selection of E/J editors in March 1978. However, the complaint, as amplified by answers to interrogatories, encompassed more than the 1978 selections. The plaintiffs were passed over when E/J positions were filled in 1976 and 1977, but NBC submitted no evidence to refute the allegation that age played a role in these hiring decisions.

Instead of attacking all of the plaintiffs' allegations on the merits, NBC mischaracterized the district court's order granting the initial motion for partial summary judgment, see supra at 3. The district court in that order removed the plaintiffs' nonwillful claims from the case; the court did not, contrary to NBC's assertion, limit the plaintiffs' allegations of willful violations to the employment choices made in March 1978. 569 F.Supp. at 288. NBC may believe that the March 1978 decisions are the only ones before the court because administrative charges were not filed within 180 days of the prior decisions, see 29 U.S.C. Sec. 626(d)(1). But this unilateral understanding of the law as it applies to this case is not the only or inevitable view. The continuing violation doctrine, which has no place with respect to acts never made the basis of a charge, see supra at 3, does work "to toll the 180 day period for filing with the EEOC." Herman v. National Broadcasting Company, 569 F.Supp. at 286 (emphasis in original); see also Roberts v. North American Rockwell Corp., 650 F.2d 823, 826 (6th Cir.1981); Milton v. Weinberger, 645 F.2d 1070, 1075 (D.C.Cir.1981). Similarly, the 180-day period is subject to equitable modifications, see Posey v. Skyline Corp., 702 F.2d 102, 104 (7th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983), and may not even commence running until "the employee knows or should know that an unlawful practice has been committed." Aronsen v. Crown Zellerbach, 662 F.2d 584, 593 (9th Cir.1981), cert. denied, 459 U.S 1200, 103 S.Ct. 1183, 75 L.Ed.2d 431 (1983). We raise these points of law, not to discuss their viability or application to the facts of this case, but to demonstrate that NBC's hiring decisions before March 1978 have not been eliminated from the case.

Although the award of summary judgment cannot be affirmed, it could still be the case that the March 1978 decisions should be removed from the list of possible ADEA violations. See generally Fed.R.Civ.P. 56(d) (case not fully adjudicated on summary judgment motion). Addressing this point in its brief to this court (as well as in its memorandum to the district court), NBC includes the following "quote" purportedly from Holder v. Old Ben Coal Company, 618 F.2d 1198, 1202 (7th Cir.1980):

A desire to hire the more experienced or better qualified applicant is a non-discriminatory, legitimate and common reason on which to base a hiring decision. Thus ... plaintiff must foreclose this possible explanation for a hiring decision before [a] prima facie case is established.

Appellee Brief at 15. Relying on this language, particularly the latter sentence, NBC asserts that "plaintiffs cannot meet the threshold requirements of a prima facie case of age discrimination." Id. at 17. NBC has, however, misquoted Holder. The sentence "Thus ... plaintiff must foreclose this possible explanation for a hiring decision before a prima facie case is established" was deleted from the Holder opinion on April 17, 1980, when the petition for rehearing was denied. Thus four years after the opinion was modified and correctly published in the Federal Reporter, NBC continues to cite and rely on a deleted...