Hrzenak v. White-Westinghouse Appliance Co., a Div. of White Westinghouse Corp., WHITE-WESTINGHOUSE

Decision Date02 July 1982
Docket NumberNo. 81-2365,WHITE-WESTINGHOUSE,81-2365
Citation682 F.2d 714
Parties111 L.R.R.M. (BNA) 2335, 29 Fair Empl.Prac.Cas. 1278, 29 Empl. Prac. Dec. P 32,869 Joseph J. HRZENAK, Appellant, v.APPLIANCE CO., A DIVISION OFCORPORATION, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

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

Thomas H. Barnard, John B. Lewis, Squire, Sanders & Dempsey, Cleveland, Ohio, for appellee; Charles W. German, Stinson, Mag & Fizzell, Kansas City, Mo., of counsel.

Before McMILLIAN, Circuit Judge, STEPHENSON, Senior Circuit Judge, and ARNOLD, Circuit Judge.

McMILLIAN, Circuit Judge.

Joseph J. Hrzenak appeals from a summary judgment entered in the District Court 1 for the Western District of Missouri finding that his claim of employment discrimination based on the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq., was barred by his failure to file a timely notice of intent to sue within the statutory time limit, and further appeals from an adverse jury verdict on his claim seeking compensatory and punitive damages under the Missouri service letter statute, Mo.Rev.Stat. § 290.140 (1978). 2

On appeal Hrzenak argues that summary judgment was inappropriate on his ADEA claim because there were contested issues of fact. Hrzenak further argues that the jury verdict on his service letter claim should be reversed because the district court gave erroneous jury instructions and abused its discretion in refusing to issue a subpoena to the foreperson of the jury and then grant a hearing to determine why the jury desired to use a dictionary. For the reasons discussed below, we affirm the district court, 510 F.Supp. 1086.

The parties stipulated to the following facts. In January 1966, Hrzenak was hired by the Westinghouse Appliance Group of Westinghouse Electric Corp. as a Builder Sales Representative. On or about March 1, 1975, White-Westinghouse Appliance Co. (White), a subsidiary of White Consolidated Industries, acquired the Westinghouse Appliance Group. White continued Hrzenak's employment as a Builder Sales Representative. In 1976, White moved its Midwest regional office from Missouri to Overland Park, Kansas. After the move, Hrzenak and the other Builder Sales Representatives began to maintain their sales offices at their homes. Hrzenak did not have office space at White's regional office but reported there at least once a month to attend sales meetings and conferences with his superiors.

On September 30, 1977, Hrzenak submitted his resignation to White to be effective January 1, 1978. The resignation stated that Hrzenak had been forced to resign because of "constant harassment, intimidation and duress by (White's) management." White, pursuant to its policy of not accepting resignations of sales personnel effective months after they were tendered, 3 accepted Hrzenak's resignation effective October 14, 1977.

On January 8, 1979, Hrzenak filed a charge with the United States Department of Labor alleging that White had discriminated against him on the basis of age in violation of the ADEA. It is undisputed that the filing was not timely under 29 U.S.C. § 626(d). 4 Hrzenak received a "right to sue" letter from the Department dated May 2, 1979.

On July 5, 1979, Hrzenak requested a service letter from White pursuant to the Missouri service letter statute, Mo.Rev.Stat. § 290.140 (1978). 5 The letter was received dated September 7, 1979.

On August 7, 1979, Hrzenak filed the present action against White seeking compensatory and punitive damages based on the ADEA and the Missouri service letter statute. White moved for a partial summary judgment on the ADEA claim based on Hrzenak's failure to file a timely charge. In response Hrzenak raised the issue of equitable tolling and consented to a pretrial evidentiary hearing on the issue. 6

At the hearing the parties stipulated that the federally required poster regarding employees' rights under the ADEA had, at all relevant times, been posted on a bulletin board in the employees' lunch room at White's regional office. It was also established that Hrzenak attended lengthy sales meetings at White's office. In addition, Norman Huber, a White employee, testified that during those meetings a morning coffee break and lunch were served in the lunch room. Huber further testified that he had seen Hrzenak in the lunch room and that Hrzenak came to the regional office two to three times a month. The only evidence offered by Hrzenak in response was his claim that he had not seen the poster and the fact that his office was at his home. 7

The district court granted White's motion for partial summary judgment, finding:

(D)efendant did in fact comply with the posting requirement ... and that plaintiff, by his own admission, visited the office at least once a month and was therefore in a position to have been fully advised of the 180-day time period .... Under the circumstances, plaintiff's assertion that he did not see the notices, standing alone, cannot be considered as a ground for tolling the operation of the 180-day period of limitation.

Hrzenak v. White-Westinghouse Appliance Co., 510 F.Supp. 1086, 1092 (W.D.Mo.1981). The district court further found that "plaintiff did not claim and, in fact, was not misled by anyone in regard to his rights nor did anyone, including the defendant, prevent him in any way from asserting his ADEA right, in a timely manner." Id. at 1092.

On appeal Hrzenak argues that summary judgment was inappropriate because his claim that he did not see the ADEA notice raises a contested issue of fact. We disagree.

We do not view the proceeding below as one for summary judgment. See Nielsen v. Western Electric Co., 603 F.2d 741 (8th Cir. 1979) (Nielsen ). Here, as in Nielsen, the record reflects that both parties treated the proceeding as a trial on the factual issues underlying Hrzenak's claim for equitable tolling. Both parties testified under oath, were subject to cross-examination and presented all available evidence in support of their respective positions.

Since all the evidence on the issue of equitable tolling was presented and argued, we consider the district court proceeding to have been a hearing in the nature of a trial on that issue. There is no reason why parties cannot agree to try certain issues on the merits and if the parties have done so, we properly may treat such proceeding as a trial on those issues even though cast in the form of a motion for summary judgment.

Id. at 743, citing Starsky v. Williams, 512 F.2d 109 (9th Cir. 1975), Gillespie v. Norris, 231 F.2d 881 (9th Cir. 1956), and Tripp v. May, 189 F.2d 198 (7th Cir. 1951).

Because we treat the district court proceeding as a trial on the factual issues underlying Hrzenak's claim for equitable tolling, we are bound by the district court's findings unless they are clearly erroneous. Fed.R.Civ.P. 52(a); Nielsen, 603 F.2d at 743.

The district court found that Hrzenak's failure to file was not due to White's misrepresentation or failure to post adequate notice and that Hrzenak had reasonable access to the notice. Hrzenak v. White-Westinghouse Appliance Co., 510 F.Supp. at 1092. Based on those findings, the district court concluded that Hrzenak's assertion that he did not see the notices, standing alone, was not a sufficient reason to toll the 180-day notice period. Id.

We conclude that the district court's findings are not clearly erroneous. It is undisputed that the federally required notice was posted on the bulletin board in the employees' lunch room and that Hrzenak had reasonable access to the lunch room. We further conclude that the district court properly applied the law in ruling that Hrzenak's claim that he did not see the poster, without more, does not toll the 180-day notice period. "If the employer complied with the relevant posting regulations, an employee's assertion that he never saw any notices should not of itself require the tolling of the 180-day in which to file a notice of intent to sue." Bonham v. Dresser Industries, Inc., 569 F.2d 187, 193 n.7 (3d Cir. 1977), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978). Accord, Pirone v. Home Insurance Co., 507 F.Supp. 1281, 1287 (S.D.N.Y.1981).

Hrzenak's claim that he was entitled to compensatory and punitive damages based on White's delay in providing a service letter and alleged inaccuracies in that letter was tried to a jury. The jury returned a verdict in favor of White. On appeal Hrzenak challenges several jury instructions.

Preliminarily we note that although state law determines the substance of jury instructions in a diversity action, the grant or denial of jury instructions is a matter of procedure and is controlled by federal law and the Federal Rules of Civil Procedure. E.g., Wright v. Albuquerque Auto-Truck Stop Plaza, Inc., 591 F.2d 585, 587 (10th Cir. 1979); Fields v. Chicago, Rock Island & Pacific R. R., 532 F.2d 1211, 1214 n.2 (8th Cir. 1976); see generally 9 C. Wright & A. Miller, Federal Practice and Procedure §§ 2255-2256 (1971). In reviewing a trial court's instructions to the jury to determine whether or not they correctly set forth the applicable law, we are bound to read and consider the charge as a whole. E.g., Bern v. Evans, 349 F.2d 282, 290 (8th Cir. 1965). A single erroneous instruction will not necessarily require reversal if the error was cured by a subsequent instruction or by consideration of the entire charge. E.g., Smith v. Wire Rope Corp., 383 F.2d 186, 188 (8th Cir. 1967).

Hrzenak first argues that the district court erred in giving Instruction No. 7 which stated that the burden was on the plaintiff "to prove every essential element of his claim by a preponderance of the evidence" and then defined "preponderance of the evidence." Hrzenak asserts that the instruction misled the jury into believing that he had the burden of establishing why he had been...

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