McConnell v. Thomson Newspapers, Inc.

Decision Date11 August 1992
Docket NumberNo. 2:92CV22,2:92CV28.,2:92CV22
PartiesFrankie McCONNELL and United States Equal Employment Opportunity Commission, Plaintiffs, v. THOMSON NEWSPAPERS, INC., et al., Defendants.
CourtU.S. District Court — Eastern District of Texas

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Jeffrey Charles Bannon, Katherine Elizabeth Bissell, Tod J. Barrett, E.E.O.C., Dallas Dist. Office, Dallas, Tex., for plaintiff E.E.O.C.

Dean Allen Searle, Marshall, Tex., James A. Rydzel, James O. Perrin, Jones Day Reaves Pogue, Cleveland, Ohio, for defendants.

Richard M. Anderson, Marshall, Tex., for plaintiff Frankie McConnell.

Dean Allen Searle, Marshall, Tex., James A. Rydzel, Jones Day Reaves Pogue, Cleveland, Ohio, for defendants.

MEMORANDUM OPINION

JUSTICE, District Judge.

I. Factual Background and Procedural History of These Actions

Plaintiff Frankie McConnell worked fulltime as chief photographer for the Marshall News Messenger, until he was discharged on January 2, 1990, at age fifty. He had worked for the Marshall News Messenger since March 24, 1986. McConnell previously had been employed by the paper from 1972-1978, and for about two years in the early 1980's. In January 1990, the News Messenger eliminated the job of chief photographer. The paper hired Mark Dimmett, then age thirty, within days after discharging McConnell, in a position classified as "Reporter/Photographer". Whether Dimmett's duties were different from McConnell's is disputed.

McConnell filed, on March 28, 1990,1 a timely charge of age discrimination with the United States Equal Employment Opportunity Commission ("EEOC"). The EEOC issued a determination on September 27, 1991, that there was reasonable cause to believe that McConnell had been a victim of age discrimination. On October 22, 1991, the EEOC contacted the industrial relations consultant of defendant Thomson Newspapers Inc. ("Thomson") to make an attempt to eliminate any discriminatory practices by voluntary compliance with the laws against age discrimination in employment. After several exchanges of correspondence, on February 12, 1992, the EEOC pronounced the efforts at voluntary compliance to have failed.

On January 2, 1992, plaintiff McConnell filed his original petition in the District County of Harrison County, 71st Judicial District of Texas, against defendants Thomson, Lincoln Publishing, Inc. ("Lincoln") and the Marshall News Messenger. He alleged a violation of the Age Discrimination in Employment Act of 1967 ("ADEA") (codified as amended at 29 U.S.C. § 621, et seq. (1992)), and willful violations of the Fair Labor Standards Act of 1938 ("FLSA") (codified as amended at 29 U.S.C. § 201, et seq. (1992)). McConnell sought lost wages and benefits; reinstatement; overtime compensation in the amount of $6,830; liquidated damages equal to any unpaid overtime compensation recovered; and attorney's fees.

On January 3, 1992, McConnell filed his first amended petition, adding defendant Lincoln Publishing (West Virginia) Inc. ("Lincoln WV").2 Defendant Thomson removed the action to the United States District Court for the Eastern District of Texas, on February 14, 1992, in accordance with 28 U.S.C. §§ 1441 and 1446, alleging federal question jurisdiction under 28 U.S.C. § 1331. Defendants filed an answer to McConnell's allegations on the same date. Defendants admitted that Lincoln WV was an "employer" for the purposes of the FLSA and ADEA,3 and that it was engaged in interstate commerce within the meaning of the statutes.4 Plaintiff McConnell did not serve a jury demand within the requisite ten day-period established by Fed. R.Civ.P. 81(c).

On March 6, 1992, plaintiff EEOC filed an action in the United States District Court for the Eastern District of Texas, on behalf of McConnell, against defendant Thomson, alleging a willful violation of the ADEA.5 The EEOC demanded a permanent injunction against Thomson's engaging in any employment practices that discriminate because of age; an order mandating defendant to institute practices and programs providing equal employment opportunities to those individuals at least forty years of age; a judgment requiring defendant to pay McConnell appropriate back wages, liquidated damages, and prejudgment interest;6 make-whole relief for all individuals adversely affected by defenders unlawful practices; and costs. Plaintiff EEOC demanded a jury trial on all questions of fact. Defendant answered on April 1, 1992, denying nearly all of the EEOC's allegations.

On May 27, 1992, pursuant to Fed. R.Civ.P. 42(a), the EEOC filed a motion to consolidate its action (No. 2:92cv28) with McConnell's private action (No. 2:92cv22) for trial. This motion was granted on June 30, 1992. On July 21, 1992, the EEOC was granted leave to amend its complaint to add defendant Lincoln WV,7 and the first amended complaint was filed thereafter. An order issued on July 28, 1992, granting plaintiff McConnell leave to file a second amended complaint to allege that defendants' violation of the ADEA was wilful. At that time, in accordance with Fed. R.Civ.P. 39(b),8 a jury trial was ordered on all issues, since McConnell had possessed a right to a jury on his ADEA and FLSA claims.9

Defendants filed their motion for summary judgment in Civil Action 2:92cv22 on June 30, 1992, and a brief in support thereof on July 9, 1992. Plaintiff McConnell responded in opposition on July 17, 1992, precipitating a reply by defendants on July 24, 1992. Defendants filed their motion and brief for summary judgment in Civil Action No. 2:92cv28 on July 13-14, 1992. The EEOC filed a response on July 27, 1992, and defendants replied six days later. On July 29, 1992, the court requested further briefing on the applicable ADEA statute of limitations. Upon careful consideration of defendants' motions, it is concluded that both should be denied. In the interests of efficiency, the reasons for the denial of defendants' respective summary judgment motions will be set forth in this memorandum opinion, which is applicable to both actions.

II. Standards for Adjudicating Summary Judgment Motions

Under Fed.R.Civ.P. 56(c), to prevail on a motion for summary judgment, the moving party bears the burden of demonstrating that the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact, and that it is entitled to judgment as a matter of law. L & B Hosp. Ventures v. Healthcare Int'l, Inc., 894 F.2d 150, 151 (5th Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 55, 112 L.Ed.2d 30 (1990). The movant must state the basis for the motion and identify the portion of the record that highlights the absence of genuine factual issues. Topalian v. Ehrman, 954 F.2d 1125, 1131-32 (5th Cir.1992), petition for cert. filed, 60 U.S.L.W. 3680 (June 4, 1992).

The substantive law underlying each of the claims in issue identifies which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). If any such facts are genuinely in dispute, summary judgment is inappropriate. A factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. When assessing a motion for summary judgment, the court must make all factual inferences in favor of the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Hansen v. Continental Ins. Co., 940 F.2d 971, 975 (5th Cir.1991). However, the judge is not to weigh the evidence, nor engage in credibility determinations. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510.

III. Defendants' Statute of Limitations Arguments

Since defendants would have the burden of persuasion as to their defense of limitations at trial, they are initially required to produce a quantum of evidence in support of their motions for summary judgment that would entitle them to judgment as a matter of law, as provided by Fed.R.Civ.P. 50(a), on plaintiffs' FLSA and ADEA claims, assuming such evidence were not controverted at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 2556, 91 L.Ed.2d 265 (1986) (Brennan, J., dissenting); accord William W. Schwarzer, et al., The Analysis and Decision of Summary Judgment Motions 45-46 (Federal Judicial Center 1991). After such a showing, the burden of production would shift to each of the plaintiffs to prove, by tendering competent evidence, that there is a genuine issue of material fact regarding whether the particular action is barred by limitations. Topalian, 954 F.2d at 1133. See also Fed.R.Civ.P. 56(e); Schwarzer, supra, at 47-52. The burden of persuasion as to a motion for summary judgment remains on the movant at all times. Celotex, 477 U.S. at 330 & n. 2, 106 S.Ct. at 2556 & n. 2 (Brennan, J., dissenting).

A. McConnell's FLSA Claims

In McLaughlin v. Richland Shoe Co., 486 U.S. 128, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988), the Supreme Court construed 29 U.S.C. § 255, which provides the applicable statute of limitations period for the FLSA. The section imposes a two-year statute of limitations on violations of the FLSA, unless such violations were willful, in which case the limitations period is three years. The statute is tolled when the plaintiff's FLSA complaint is filed. 29 U.S.C. §§ 255(a) & 256. The Supreme Court defined a willful violation of the FLSA as one where "the employer knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute." McLaughlin, 486 U.S. at 133, 108 S.Ct. at 1681. If an employer acts unreasonably, but not recklessly, in determining its legal obligations, willfulness is not established. Id.; Uffelman v. Lone Star Steel Co., 863 F.2d 404, 408-09 (5th Cir.1989) (applying ...

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