Janikowski v. Bendix Corp.

• Decision Date: 28 September 1987
• Docket Number: No. 85-1643,85-1643
• Citation: 823 F.2d 945
• Parties: 47 Fair Empl.Prac.Cas. 544, 43 Empl. Prac. Dec. P 37,221, 45 Empl. Prac. Dec. P 37,656 Stanley M. JANIKOWSKI, Plaintiff-Appellant, v. BENDIX CORPORATION, a Delaware corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 945

823 F.2d 945

47 Fair Empl.Prac.Cas. 544,

43 Empl. Prac. Dec. P 37,221,

45 Empl. Prac. Dec. P 37,656

Stanley M. JANIKOWSKI, Plaintiff-Appellant, v. BENDIX CORPORATION, a Delaware corporation, Defendant-Appellee.

No. 85-1643.

United States Court of Appeals Sixth Circuit.

Argued Oct. 16, 1986.

Decided July 9, 1987.

Order on Rehearing Sept. 28, 1987.

George B. Washington (argued) Greenspon, Scheff & Washington, P.C., Detroit, Mich., for plaintiff-appellant.

Michael A. Alaimo (argued), Detroit, Mich., for defendant-appellee.

Before NELSON and RYAN, Circuit Judges and ENSLEN, District Judge. ^*

RYAN, Circuit Judge.

Stanley Janikowski, plaintiff, appeals the district court's order granting defendants summary judgment on his age discrimination (Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-634 (1985)) (ADEA), and Elliot-Larsen Civil Rights Act, Mich.Comp.L.Ann. Secs. 37.2101-37.2804 (1985) claims and the court's order denying him leave to amend his complaint to include a breach of contract action.

We affirm the district court's order granting summary judgment to defendants on the ADEA claim, and reverse the grant of summary judgment on the Elliot-Larsen claim and the order denying leave to amend the complaint.

Bendix Corporation employed Janikowski in its Tax Department from September 1, 1971 through November 30, 1981. In 1979 and 1980, he received low grades on his performance review. Thereafter, he requested a transfer because of difficulties with his supervisor. Although he remained in the Tax Department, plaintiff's position changed to that of Corporate Tax Executive--Special Projects.

When Bendix encountered a business decline in 1980, it implemented a reduction in work force. On September 4, 1980, Janikowski's supervisor, Ron Weinel, informed him his employment would terminate September 30, 1981. Subsequently, Weinel sent Janikowski a memo, dated November 18, 1980, stating that his position would terminate September 30, 1981, and that, "if on the date of your termination from the Tax Department, you have not secured a position elsewhere within Bendix, you will be terminated from employment." Weinel urged plaintiff to seek employment both within and without Bendix.

Bendix offered Janikowski time off for interviews, plus assistance in the preparation of resumes. In December 1980, Janikowski met with a member of Bendix's Human Resources Department and an individual from Bendix's recruiting firm to begin his search for employment outside the company. He also contacted professional recruiters and business associates while looking for work. Although he also applied for several jobs within Bendix, he received no offers.

Unable to obtain a new position, Janikowski requested that Bendix postpone the termination of his employment. He was granted an extension on a month-to-month basis. In mid-November 1981, Bendix advised Janikowski his employment would come to an end November 30, 1981. He departed Bendix on November 30, 1981.

On May 14, 1982, Janikowski filed age discrimination charges against Bendix with the EEOC and the Michigan Civil Rights Commission. The EEOC dismissed the complaint on March 28, 1983, and Janikowski filed the present action on November 28, 1983. Alleging federal jurisdiction based on both diversity of citizenship, 28 U.S.C. Sec. 1332, and the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-634, the complaint charged Bendix with having violated Sec. 4 of the ADEA, 29 U.S.C. Sec. 623, and Sec. 202 of Michigan's Elliot-Larsen Civil Rights Act, Mich.Comp.L.Ann. Sec. 37.2202.

I.

The district court dismissed the federal ADEA claim as having been untimely filed. In states such as Michigan, which have their own laws forbidding age discrimination, a plaintiff must file a claim of ADEA violation with the EEOC "within 300 days after the alleged unlawful practice occurred," 29 U.S.C. Sec. 626(d)(2), failing which, any suit under the ADEA filed in the federal district court will be dismissed as untimely. Janikowski argues that the alleged act of discrimination occurred the day he was actually discharged, November 30, 1981. The district court held the alleged unlawful practice occurred on September 4, 1980, the day Janikowski received notification of his eventual termination. If plaintiff's cause of action accrued when Bendix notified him they were terminating him, his ADEA claim was untimely, and summary judgment was properly granted. If his cause of action accrued on his last day of work, then his ADEA claim was timely, and the district court erred.

A long line of cases, including two Supreme Court cases, Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981); Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), hold that a plaintiff's cause of action under the ADEA accrues when he receives a notice of termination, not when his employment actually ceases. See also Baer v. R & F Coal Co., 782 F.2d 600, 602 (6th Cir.1986). In Chardon, the Supreme Court reiterated that "the proper focus is on the time of the discriminatory act, not the point at which the consequences of the act become painful." 454 U.S. at 8, 102 S.Ct. at 29. Further, " '[m]ere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination.' " Id. (quoting Ricks, 449 U.S. at 257, 101 S.Ct. at 504). To avoid the preclusive effect of Ricks and Chardon, Janikowski argues that the notification he received was not definite and final. He points out that while there was no doubt he would leave the Tax Department, Bendix left open the possibility that he could continue working elsewhere in the company.

Ricks has determined this issue in Bendix's favor. In Ricks, the plaintiff professor claimed the defendant college denied him academic tenure because of his national origin. The Supreme Court rejected Ricks' argument that the limitations' period did not begin to run upon notification of the adverse tenure decision because the "letter explicitly held out to Ricks the possibility that he would receive tenure if the Board sustained his grievance." 449 U.S. at 260, 101 S.Ct. at 505. Ricks held that the cause of action accrued when Ricks received notice he would be terminated, regardless of whether the letter was equivocal in holding out the possibility that he might receive tenure and thereby avoid termination. In Kessler v. Board of Regents, 738 F.2d 751, 755 (6th Cir.1984), this court recognized that employment decisions which are "somewhat ambiguous with respect to ... finality" still trigger the statute of limitations. Kessler suggested that a notice of termination which expressly stated it was not final could still suffice to start the running of the statute of limitations. Id. at 755-56. See also Miller v. IT & T Corp., 755 F.2d 20 (2d Cir.), cert. denied, 474 U.S. 851, 106 S.Ct. 148, 88 L.Ed.2d 122 (1985), which held that a notice of termination starts the statute of limitations. Plaintiff's seeking a new position within the company before his last day of work ended did not toll the period of limitations.

Janikowski next asserts that the "continuing violation" doctrine saves his suit because the notice of termination given in the fall of 1980 was but one manifestation of a pattern of discrimination that continued up to his eventual termination. Bendix's refusals to place Janikowski in other departments were allegedly other manifestations of Bendix's continuing pattern of discrimination. Thus, according to Janikowski, the statute of limitations did not begin to run until the last discriminatory act in Bendix's continuing violation of the ADEA occurred. This last act, according to Janikowski, was his actual discharge.

But plaintiff's search for other employment with Bendix was an attempt to avoid the consequences of the termination. "Repeated requests for further relief from a prior act of discrimination will not set the time limitations running anew." EEOC v. McCall Printing Corp., 633 F.2d 1232, 1237 (6th Cir.1980) (citing Goldman v. Sears, Roebuck & Co., 607 F.2d 1014 (1st Cir.1979), cert. denied, 445 U.S. 929, 100 S.Ct. 1317, 63 L.Ed.2d 762 (1980)).

In Held v. Gulf Oil Co., 684 F.2d 427 (6th Cir.1982), we applied the "continuing violation" doctrine where defendant had subjected plaintiff to discriminatory working conditions throughout the term of her employment; but Bendix's discrete decisions not to employ Janikowski in other positions bear no resemblance to the daily discrimination suffered by the plaintiff in Held. In Roberts v. North American Rockwell Corp., 650 F.2d 823 (6th Cir.1981), the plaintiff established a continuing violation on the basis of the defendant corporation's repeated refusals to hire her; but there the defendant company had a policy of discriminating against women. We said:

"In many such situations, the refusal to hire or promote results from an ongoing discriminatory policy which seeks to keep blacks or women in low-level positions or out of the company altogether. In such cases, courts do not hesitate to apply what has been termed the continuing violation doctrine.

* * *

* * *

"If an ongoing discriminatory policy is in effect, the violation of Title VII is ongoing as well."

Id. at 826-27. In the case at bar, Janikowski has alleged no over-arching policy of discrimination against fifty year olds. In the absence of such a policy, there is no continuing violation. We are satisfied the district court properly dismissed plaintiff's ADEA claim as having been untimely filed.

II.

Janikowski next challenges the district court's grant of summary judgment on the Michigan Elliot-Larsen Civil Rights Act, Mich.Comp.L.Ann. Secs. 37.2101-37.2804, claims on statute of limitations grounds. The applicable Michigan statute of limitations is three years. Janikowski contends that Michigan law, unlike Ricks and Chardon, starts the statute of limitations from the date of actual...