Hulsey v. Kmart, Inc., No. 93-5234

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore BALDOCK and BRORBY; BRORBY
Citation43 F.3d 555
Parties66 Fair Empl.Prac.Cas. (BNA) 1327 David HULSEY, and Gary Davis, Plaintiffs-Appellants, v. KMART, INC., a Michigan corporation, Defendant-Appellee.
Docket NumberNo. 93-5234
Decision Date27 December 1994

Page 555

43 F.3d 555
66 Fair Empl.Prac.Cas. (BNA) 1327
David HULSEY, and Gary Davis, Plaintiffs-Appellants,
v.
KMART, INC., a Michigan corporation, Defendant-Appellee.
No. 93-5234.
United States Court of Appeals,
Tenth Circuit.
Dec. 27, 1994.

Page 556

Robert L. Briggs, P.C., Tulsa, OK, for plaintiffs-appellants.

Kristen L. Brightmire (Kathy R. Neal and Diana H. Clark with her on the brief), of Doerner, Stuart, Saunders, Daniel, Anderson & Biolchini, Tulsa, OK, for defendant-appellee.

Before BALDOCK and BRORBY, Circuit Judges, and KANE, * District Judge.

BRORBY, Circuit Judge.

David Hulsey and Gary Davis appeal the magistrate judge's entry of summary judgment dismissing their suit for age discrimination on the ground it is time-barred. We have jurisdiction under 28 U.S.C. Sec. 1291, and affirm.

BACKGROUND

Mr. Hulsey began his employment with Kmart in 1972. In 1985 he was promoted to the position of store manager at Kmart's Bartlesville, Oklahoma, store. He served in that capacity until February 9, 1990, at which time he was demoted to the position of local operations assistant manager and transferred to a Kmart store in Memphis, Tennessee. At the time of his demotion and transfer, Mr. Hulsey was forty-one years old.

Mr. Davis began his employment with Kmart in 1975. In 1983, he was promoted to the position of store manager at Kmart's Broken Arrow, Oklahoma, store. He served in that capacity until February 1, 1989, at which time he was demoted to the position of assistant store manager and transferred to a Kmart store in Carbondale, Illinois. At the time of his demotion, Mr. Davis was forty-two years old.

Mr. Hulsey and Mr. Davis (hereinafter "Employees") filed suit in Tulsa County District

Page 557

Court, Oklahoma, against Kmart on December 29, 1992, alleging age discrimination in violation of federal law, wrongful discharge, and intentional infliction of emotional distress. It is undisputed that prior to filing suit, employees had not filed charges of age discrimination with the Oklahoma Human Rights Commission or the Equal Employment Opportunity Commission ("EEOC"). Based on diversity jurisdiction, Kmart removed the action to federal district court. After an answer, a motion for summary judgment, and a response were filed, the parties consented to proceed before a magistrate judge.

The magistrate judge entered summary judgment in favor of Kmart as to all causes of action. The court concluded Employees' entire suit is time barred unless the doctrine of equitable tolling is applied.

DISCUSSION

We review the entry of summary judgment de novo, drawing all reasonable inferences in favor of the nonmovants. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Summary judgment is appropriate only when the moving party shows there is no "genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). To avoid summary judgment, the nonmovant must make a showing sufficient to establish an inference of the existence of each element essential to the case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The nonmovant "may not rest upon mere allegation or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986).

Employees argue their cause of action did not accrue until the time they suspected their demotions and transfers were motivated by age discrimination. They assert they did not know this until they watched the television program, "A Current Affair," in December of 1992.

A cause of action accrues under the Age Discrimination in Employment Act ("ADEA") "on the date the employee is notified of an adverse employment decision." Gray v. Phillips Petroleum Co., 858 F.2d 610, 613 (10th Cir.1988) (citing Delaware State College v. Ricks, 449 U.S. 250, 256-59, 101 S.Ct. 498, 503-04, 66 L.Ed.2d 431 (1980)). "Generally, an employee is notified of an adverse employment decision when a particular event or decision is announced by the...

To continue reading

Request your trial
189 practice notes
  • Gerald v. Locksley, No. CIV 10–0721 JB/LFG.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • May 6, 2011
    ...to delay filing his charge.’ ” Al–Ali v. Salt Lake Cmty. Coll., 269 Fed.Appx. 842, 847 (10th Cir.2008)(quoting Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir.1994)). Equitable tolling “is not warranted where an employee is aware of all of the facts constituting discriminatory treatment b......
  • Gerald v. Locksley, No. CIV 10-0721 JB/LFG
    • United States
    • U.S. District Court — District of New Mexico
    • August 1, 2011
    ...to delay filing his charge.'" Al-Ali v. Salt Lake Cmty. Coll., 269 F. App'x 842, 847 (10th Cir. 2008)(quoting Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994)). Equitable tolling "is not warranted where an employee is aware of all of the facts constituting discriminatory treatment b......
  • Gerald v. Locksley, No. CIV 10-0721 JB/LFG
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • March 14, 2012
    ...to delay filing his charge.'" Al-Ali v. Salt Lake Cmty. Coll., 269 F. App'x 842, 847 (10th Cir. 2008)(quoting Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994)). Equitable tolling "is not warranted where an employee is aware of all of the facts constituting discriminatory treatment b......
  • Villarreal v. R.J. Reynolds Tobacco Co., No. 15–10602.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • November 30, 2015
    ...F.2d 906, 924 (5th Cir.1973).8Triggering “events” include “the refusal to hire the discriminatee[.]” Id.; accord, e.g., Hulsey v. Kmart,43 F.3d 555, 558–59 (10th Cir.1994)(“[N]otice or knowledge of discriminatory motivation is not a prerequisite for a cause of action to accrue under the ADE......
  • Request a trial to view additional results
187 cases
  • Gerald v. Locksley, No. CIV 10–0721 JB/LFG.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • May 6, 2011
    ...to delay filing his charge.’ ” Al–Ali v. Salt Lake Cmty. Coll., 269 Fed.Appx. 842, 847 (10th Cir.2008)(quoting Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir.1994)). Equitable tolling “is not warranted where an employee is aware of all of the facts constituting discriminatory treatment b......
  • Gerald v. Locksley, No. CIV 10-0721 JB/LFG
    • United States
    • U.S. District Court — District of New Mexico
    • August 1, 2011
    ...to delay filing his charge.'" Al-Ali v. Salt Lake Cmty. Coll., 269 F. App'x 842, 847 (10th Cir. 2008)(quoting Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994)). Equitable tolling "is not warranted where an employee is aware of all of the facts constituting discriminatory treatment b......
  • Gerald v. Locksley, No. CIV 10-0721 JB/LFG
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • March 14, 2012
    ...to delay filing his charge.'" Al-Ali v. Salt Lake Cmty. Coll., 269 F. App'x 842, 847 (10th Cir. 2008)(quoting Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994)). Equitable tolling "is not warranted where an employee is aware of all of the facts constituting discriminatory treatment b......
  • Villarreal v. R.J. Reynolds Tobacco Co., No. 15–10602.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • November 30, 2015
    ...F.2d 906, 924 (5th Cir.1973).8Triggering “events” include “the refusal to hire the discriminatee[.]” Id.; accord, e.g., Hulsey v. Kmart,43 F.3d 555, 558–59 (10th Cir.1994)(“[N]otice or knowledge of discriminatory motivation is not a prerequisite for a cause of action to accrue under the ADE......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT