Hrzenak v. White-Westinghouse Appliance Co.

• Decision Date: 07 April 1981
• Docket Number: No. 79-0712-CV-W-1.,79-0712-CV-W-1.
• Citation: 510 F. Supp. 1086
• Parties: Joseph J. HRZENAK, Plaintiff, v. WHITE-WESTINGHOUSE APPLIANCE CO., Defendant.
• Court: U.S. District Court — Western District of Missouri

510 F. Supp. 1086

Joseph J. HRZENAK, Plaintiff, v. WHITE-WESTINGHOUSE APPLIANCE CO., Defendant.

No. 79-0712-CV-W-1.

United States District Court, W. D. Missouri, W. D.

April 7, 1981.

Charles C. Shafer, Jr., Kansas City, Mo., for plaintiff.

Charles W. German, Stinson, Mag & Fizzell, Kansas City, Mo., for defendant.

MEMORANDUM AND ORDER

OLIVER, Senior District Judge.

I.

This case pends on defendant's January 7, 1980 motion for partial summary judgment directed to Count I of plaintiff's complaint which prays for $763,244.97 damages for alleged violations of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. Defendant's motion alleges that plaintiff failed to comply with administrative filing requirements of the Act, 29 U.S.C. § 626(d).

The virtually undisputed factual circumstances are established by the parties' stipulation of fact as included in Standard Pretrial Order No. 2, by a post-hearing stipulation filed March 10, 1981, and by the testimony and other evidence adduced at a plenary evidentiary hearing held March 4, 1981 at which both sides adduced all evidence which they believed to be relevant and material to the legal questions presented. After consideration of the briefs in support and in opposition, we find and conclude that defendant's motion for partial summary judgment directed to Count I should be granted.

II.

Count I of plaintiff's complaint alleges a claim under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621, et seq. Section 626(d) of 29 U.S.C., as amended effective April 6, 1978, provides in part that:

No civil action may be commenced by an individual under the ADEA ... until 60 days after a charge alleging unlawful discrimination has been filed with the Secretary. Such a charge shall be filed —

(1) within 180 days after the alleged unlawful practice occurred; or

(2) in a case to which section 633(b) of this title applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.¹

There has never been any question about the fact that plaintiff did not file a charge² within 180 days after the occurrence of the alleged unlawful practice as provided in Section 626(d). The files and records in this case show, however, that the parties were in apparent disagreement in regard to whether a failure to comply with Section 626(d) should be considered jurisdictional or whether such a failure could be considered not to be jurisdictional and therefore subject to equitable tolling.

The only Eighth Circuit case cited by defendant in its brief in support of its pending motion was Moses v. Falstaff Brewing Corp., 525 F.2d 92 (8th Cir. 1975). Although that case reversed the district court's grant of a motion for summary judgment, it recognized a conflict in the authorities and suggested, by way of dictum, that "most courts have regarded a timely filing of notice of intent to sue as a jurisdictional requirement" Id. at 94.

Plaintiff, on the other hand, cited and relied in his brief in opposition upon Judge Bownes' opinion in Skoglund v. Singer Company, 403 F.Supp. 797 (D.N.H.1975), which concluded, after examination of the conflict of authority noted in Moses, that "Section 626(d) is not `jurisdictional' in the strict sense and that it is a requirement subject to equitable modifications." Id. at 804.

It is important to note the position plaintiff took in regard to the factual circumstances of this case before the parties entered into the stipulation of facts contained in Standard Pretrial Order No 2 and before the plenary evidentiary hearing on defendant's pending motion was conducted March 4, 1981. Plaintiff argued in his brief filed before the stipulations were executed that the plaintiff's situation in this case was the same as plaintiff's situation in Skoglund. That situation was described by Judge Bownes in Skoglund at 403 F.Supp. 803 as follows:

Plaintiff acknowledges that he was late in filing his intent to sue notice with the Secretary of Labor. However, he urges this court to obviate the required one hundred eighty day limit because defendant failed to comply with 29 U.S.C. § 627 which provides:

Every employer, employment agency, and labor organization shall post and keep posted in conspicuous places upon its premises a notice to be prepared or approved by the Secretary setting forth information as the Secretary deems appropriate to effectuate the purposes of this chapter.

In addition to holding that Section 626(d) was not jurisdictional, Judge Bownes in Skoglund also found that "plaintiff's claim, if proven, is sufficient to toll the one hundred eighty day notification requirement." Id. at 805. Judge Bownes concluded by stating that:

Whether defendant has failed to post notices as required by Section 627 is a factual question which must be determined before I finally rule on defendant's motion to dismiss. A hearing on this question must be held.

The judges of the Western District of Missouri, in recognition of the conflict between the result of Moses v. Falstaff Brewing Corporation and the Eighth Circuit's apparent approval in Moses of the rationale of Powell v. Southwestern Bell Telephone Company, 494 F.2d 485 (5th Cir. 1974), adopted procedures in ADEA cases under which full plenary evidentiary hearings were held in connection with motions that presented questions of whether a particular plaintiff had complied with the filing requirements of the ADEA. See Catlett v. Owens-Illinois, Inc., 454 F.Supp. 358 (W.D. Mo.1978), in which Judge Collinson, after full plenary evidentiary hearing, concluded that the 180-day time period was tolled under the circumstances of that case. See also Nielsen v. Western Elec. Co., Inc., 603 F.2d 741 (8th Cir. 1979), in which the Court of Appeals affirmed Judge Clark's grant of defendant's motion for summary judgment based upon his determination, made after full plenary evidentiary hearing, that plaintiff had failed to establish any factual basis which would permit equitable tolling of the 180-day time period.³

III.

Plaintiff's citation and reliance on Skoglund v. Singer Company and plaintiff's affidavit attached to the suggestions filed in opposition to defendant's pending motion made it apparent that plaintiff might contend, on the facts, that defendant had not in fact posted the notice required by Section 627 of Title 29, United States Code.⁴ Plaintiff's affidavit stated that:

During my employment with White-Westinghouse, I "officed" out of my home. At no time was I furnished with any notice or poster advising me of my rights under the Old Age Discrimination Act.

During my period of employment, I would be at my employer's central office on occasions. Never during any visit to my employer's local office did I ever see any such notice or posters.

Plaintiff's brief in opposition suggested that "the notice required by 29 U.S.C. § 627 had not been posted."

In our memorandum supporting our order setting defendant's pending motion for partial summary judgment for full plenary evidentiary hearing, we stated the following:

Counsel are familiar with the fact that this Court has consistently refused to rule defendant's January 7, 1980 motion for partial summary judgment until after the parties would have agreed upon and filed Standard Pretrial Order # 2. Standard Pretrial Order # 2 was at long last agreed to and filed by the parties January 29, 1981. Among the factual circumstances agreed upon by the parties were the following:

1. The apparently agreed upon date of plaintiff's termination was October 14, 1977 (¶ 14, SPO # 2).

2. Plaintiff did not file a charge with the Department of Labor until January 8, 1979 (¶ 15, SPO # 2).

3. While plaintiff worked out of his home in Kansas and merely reported to defendant's Midwest Regional office, he was at that office during his period of employment on an occasional basis although he had no office space therein (¶ 9, SPO # 2 and ¶ 3 Plaintiff's Affidavit of January 21, 1980).

4. At all times relevant to this case, defendant's Midwest Regional sales office had posted on its premises "the federally-required poster regarding employee rights under the Age Discrimination in Employment Act." (¶ 11, SPO # 2).

We are satisfied that under applicable law it would not be proper to rule defendant's January 7, 1980 motion for partial summary judgment on the basis of plaintiff's deposition; plaintiff's affidavit sworn to January 21, 1980 attached to plaintiff's January 22, 1980 suggestions in opposition to defendant's motion; and the factual data agreed to by the parties in Standard Pretrial Order # 2.

Rather, we are satisfied that we should follow procedures similar to those followed by Judge Clark in Nielsen v. Western Elec. Co., Inc., (8th Cir. 1979) 603 F.2d 714, and by Judge Collinson in Catlett v. Owens-Illinois, Inc., 454 F.Supp. 358 (W.D.Mo.1978).

We are familiar with the Eighth Circuit's recent refusal to put a jurisdictional label on the limitation period set forth in 29 U.S.C.A. § 626(d)(1), in Larson v. American Wheel and Brake, Inc., 610 F.2d 506 (8th Cir. 1979). The Eighth Circuit concluded in that case, however, that the district court's dismissal of the ADEA action should be affirmed on the ground that the circumstances there presented could not support a finding of equitable tolling, a decision obviously consistent with Nielsen's express holding that "the notice requirement is not jurisdictional but is similar to a statute of limitations and therefore subject to equitable tolling."

Counsel are therefore to understand that both sides shall come to the scheduled pretrial conference fully prepared to adduce any and all evidence in support of their respective positions as to whether plaintiff's failure to meet the notice requirements set forth in the Act should or should not be subject to equitable tolling. The Court will expect that plaintiff

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