Rhodes v. Guiberson Oil Tools Div.

• Decision Date: 03 April 1991
• Docket Number: No. 90-3178,90-3178
• Citation: 927 F.2d 876
• Parties: 55 Fair Empl.Prac.Cas. 792, 56 Empl. Prac. Dec. P 40,673, 59 USLW 2663 Calvin RHODES, Plaintiff-Appellant, v. GUIBERSON OIL TOOLS DIVISION a/k/a F I E, a/k/a Division Dresser Industries, Inc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 876

927 F.2d 876

55 Fair Empl.Prac.Cas. 792,

56 Empl. Prac. Dec. P 40,673, 59 USLW 2663

Calvin RHODES, Plaintiff-Appellant, v. GUIBERSON OIL TOOLS DIVISION a/k/a F I E, a/k/a Division

Dresser Industries, Inc., Defendant-Appellee.

No. 90-3178.

United States Court of Appeals, Fifth Circuit.

April 3, 1991.

Rehearing Denied May 15, 1991.

Joseph L. Waitz, Randall L. Bethancourt, Waitz & Downer, Homa, La., for plaintiff-appellant.

Howard L. Janco, Dresser Industries, Inc., Dallas, Tex., Robert Gabriel Coury, J. Paul Demarest and Thomas J. Lutkewitte, Favret & Favret, New Orleans, La., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, WILLIAMS, JONES, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Plaintiff-appellant Calvin Rhodes sued defendant-appellee Guiberson Oil Tools Division on the ground that Guiberson Oil violated the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-34 (1988), (ADEA) when it discharged him. The jury found that Guiberson Oil discriminated against Rhodes on the basis of his age. The magistrate judge, who was to decide all issues except liability, then ruled that Rhodes had failed to file his charge with the Equal Employment Opportunity Commission in a timely fashion. On this basis, the magistrate judge dismissed Rhodes' case with prejudice.

I. FACTS AND PRIOR PROCEEDINGS.

On October 15, 1986, Calvin Rhodes received notice that he would be discharged from his job with Guiberson Oil Tools Division because of a reduction in work force. The reason for his termination seemed credible to Rhodes. He worked in the oil field industry, which was suffering a deep recession in 1986. His last day on the job was October 31, 1986. At that time, Rhodes was 56-years-old and made $65,000. On his severance report, Guiberson Oil indicated that Rhodes was discharged because of a reduction in work force and that it would consider re-hiring Rhodes. On or about December 19, 1986, Rhodes discovered that four days earlier, Guiberson Oil had hired a 42-year-old at $36,000 to replace him. On April 28, 1987, Rhodes filed a charge with the Equal Employment Opportunity Commission (EEOC), 195 days after he received notice of his termination. Assuming that the 180 day limit for his charge began running on the date of his discharge, the filing was 15 days late. Rhodes told the EEOC on June 21, 1988, that he would pursue his discrimination claim in federal court. On this basis, the EEOC dismissed Rhodes' EEOC charge.

On August 10, 1988, he filed a federal suit under the Age Discrimination in Employment Act. The parties agreed that the jury would decide the issue of liability and the magistrate judge would decide the remaining issues. The jury found that Guiberson Oil had terminated Rhodes because of his age, although it had not done so "willfully". ¹ The magistrate judge then held a hearing on the issue of damages and accepted post-trial memoranda on the issues of damages and timeliness. The magistrate judge found that the period for filing a claim with the EEOC had expired before Rhodes filed his charge with the EEOC and the period could not be extended under equitable tolling or equitable estoppel. The magistrate judge dismissed Rhodes' suit with prejudice. Rhodes appeals, contending that his suit is not time-barred. The sufficiency of the evidence supporting the jury verdict is not before us. Guiberson Oil did not raise this issue in its brief or at oral argument.

II. PRE-CONDITIONS TO AN ADEA SUIT.

Employees cannot commence a civil action under the ADEA until 60 days after they have filed a charge with the EEOC alleging unlawful discharge. 29 U.S.C. Sec. 626(d) (1988). ADEA required that Rhodes file such a charge within 180 days of the alleged discriminatory act. Id. at Sec. 626(d)(1). Rhodes was not entitled to the 300-day filing period applicable to plaintiffs in deferral states. Louisiana has no state agency for age discrimination complaints and is therefore not a deferral state. See Id. Secs. 633(b), 626(d)(2); La.Rev.Stat.Ann. Secs. 23:971-76 (West 1985); see generally Blumberg v. HCA Management, Co., 848 F.2d 642, 646 (5th Cir.1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 789, 102 L.Ed.2d 781 (1989); Mennor v. The Fort Hood Nat'l Bank, 829 F.2d 553, 554-56 (5th Cir.1987). The statute provides that the 180-day filing period begins when the employee receives notice of discharge. See generally Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981) (per curiam); Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). According to this rule, the filing period for Rhodes began October 15, 1986, the date he received notice of his termination, and ended fifteen days before he filed his complaint with the EEOC.

III. EQUITABLE TOLLING AND EQUITABLE ESTOPPEL.

Even though Rhodes did not file his complaint with the EEOC within 180 days of the notice of his termination, his federal suit is not necessarily time-barred. The EEOC filing requirement functions as a statute of limitations rather than a jurisdictional prerequisite. It is "a pre-condition to filing suit in district court, but is not related to the subject matter jurisdiction of the court." Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 595 (5th Cir.1981) (en banc); see also Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398, 102 S.Ct. 1127, 1135, 71 L.Ed.2d 234 (1982). The filing deadline is thus subject to equitable modification, i.e. tolling or estoppel, when necessary to effect the remedial purpose of ADEA. Clark v. Resistoflex Co., A Div. of Unidynamics Corp., 854 F.2d 762, 765 (5th Cir.1988).

The Fourth Circuit recently explained the difference between equitable tolling and equitable estoppel: "Equitable tolling focuses on the plaintiff's excusable ignorance of the employer's discriminatory act. Equitable estoppel, in contrast, examines the defendant's conduct and the extent to which the plaintiff has been induced to refrain from exercising his rights." Felty v. Graves-Humphreys, Co., 785 F.2d 516, 519 (4th Cir.1986) (footnote omitted) (quoted in Clark v. Resistoflex Co., A Division of Unidynamics Corp., 854 F.2d 762, 769 n. 4 (5th Cir.1988)). A case of equitable tolling would arise, for example, if the employer had failed to post information about employees' rights under federal anti-discrimination laws, Clark, 854 F.2d at 767, or if the employee "could not by the exercise of reasonable diligence have discovered essential information bearing on his claim." Cada v. Baxter Healthcare Corp., 920 F.2d 446, 452 (7th Cir.1990). Equitable tolling focuses on the employee's ignorance, not on any possible misconduct by the employer.

Under equitable estoppel, an employer is estopped from asserting the filing period if the employer misrepresented or concealed "facts necessary to support a discrimination charge." Pruet Prod. Co. v. Ayles, 784 F.2d 1275, 1280 (5th Cir.1986). If the defendant did conceal facts or misled the plaintiff and thereby caused the plaintiff not to assert his rights within the limitations period, the defendant is estopped from asserting the EEOC filing time as a defense. See id.; see also Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 595-96 (5th Cir.1981) (en banc); Oaxaca v. Roscoe, 641 F.2d 386, 391 (5th Cir. Unit A April 1981); Woodard v. Western Union Tel. Co., 650 F.2d 592, 595 (5th Cir. Unit B July 1981); Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924, 931 (5th Cir.1975). Although this case touches on both doctrines, it focuses more on equitable estoppel rather than equitable tolling because Rhodes claims he was untimely because Guiberson Oil mislead him about the reasons for his discharge. See Cada, 920 F.2d at 451-52.

Rhodes has the burden of proving that Guiberson Oil is estopped from relying on the EEOC filing period. Blumberg v. HCA Management, Co., 848 F.2d 642, 644 (5th Cir.1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 789, 102 L.Ed.2d 781 (1989). Rhodes must prove that the defendant concealed facts or misled him about the reasons for his termination. The limitations period is then tolled until he knew or should have discovered the misrepresentation or concealment that caused him to delay filing his complaint. The magistrate judge held that Rhodes did not prove that he was entitled to equitable tolling or equitable estoppel. In so holding, she stated her fact findings in a written opinion.

IV. STANDARD OF REVIEW.

We first set out the applicable standard of review. The case was submitted to the magistrate judge by consent of the parties under 28 U.S.C. Sec. 636(c) (1988). The magistrate judge's rulings are directly appealable to the Court of Appeals, id. at Sec. 636(c)(3), and they are reviewed under the same standard of review afforded rulings by a district judge. We must decide, therefore, what types of rulings the magistrate judge made and what standard of review applies to such rulings.

At the close of Rhodes' case-in-chief, Guiberson Oil made a motion for a directed verdict on the ground that Rhodes' EEOC charge was untimely. The magistrate judge reserved ruling on the motion. After the jury found Guiberson Oil guilty of age discrimination, the magistrate judge found Rhodes' claim time barred and dismissed it with prejudice, "having considered the petition, the record, law, and written responses assigned."

Although Guiberson Oil made a motion for directed verdict on the issue of timeliness, we do not treat the magistrate judge's ruling as a directed verdict for two reasons. First, Guiberson Oil could not make a motion for directed verdict on the issue of timeliness because the magistrate judge was by agreement to decide timeliness, not the jury. No jury instructions on timeliness or questions regarding equitable estoppel or equitable tolling were submitted to the jury. See generally In the Matter of Waller Creek, Ltd., 867 F.2d 228, 232 (5th Cir.1989); ...