Sanders v. Duke University

• Decision Date: 14 May 1982
• Docket Number: No. C-81-216-D.,C-81-216-D.
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Aaron P. SANDERS, Plaintiff, v. DUKE UNIVERSITY, et al., Defendants.

538 F. Supp. 1143

Aaron P. SANDERS, Plaintiff, v. DUKE UNIVERSITY, et al., Defendants.

No. C-81-216-D.

United States District Court, M. D. North Carolina, Durham Division.

May 14, 1982.

Jonathan Wallas and James C. Fuller, Jr., Charlotte, N. C., for plaintiff.

E. K. Powe, Durham, N. C., for defendants.

MEMORANDUM OPINION

ERWIN, District Judge.

This case has come before the court upon the defendants' motion to dismiss, or in the alternative, motion for partial summary judgment. The plaintiff is a tenured professor at Duke University Medical Center (DUMC). He alleges that defendants Duke University and DUMC violated the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (ADEA). The plaintiff is chairman of the Division of Radiobiology, a division within DUMC's Department of Radiology. The plaintiff was fifty-six years old when he filed a charge with the Equal Employment Opportunity Commission (EEOC). He alleges in addition a pendent claim arising under North Carolina contract law.

I. ADEA CLAIM

The gravamen of the plaintiff's ADEA complaint is that he was denied routine salary adjustments in the years 1977, 1978, 1979, and 1980; that he has been denied and is being denied secretarial assistance and fringe benefits routinely given to members of the Department of Radiology under age forty; and that he has been forced to endure derogatory statements, correspondence, and personal comments because of his age.

A. Filing of the Charge

The plaintiff filed his charge of discrimination with the EEOC on December 23, 1980. The ADEA provides that the discriminatory acts must have occurred within 180 days preceding the filing of the charge. 29 U.S.C. § 626(d) (Supp.1981).

The defendants' motion to dismiss under Fed.R.Civ.P. 12(b)(6) or, in the alternative, for partial summary judgment under Fed. R.Civ.P. 56(a), is based on their contention that the allegedly discriminatory events occurred before June 25, 1980—180 days prior to the filing of the charge. The plaintiff has responded that even if the claims are time-barred, the court should nevertheless consider them under the doctrines of "equitable tolling" and "continuing violation."

B. Equitable Tolling

The plaintiff argues that even if the alleged discriminatory acts occurred prior to the 180 day period, they remain actionable under the doctrine of "equitable tolling."¹ Essentially, the plaintiff contends that the court should modify the 180 day period, first, because he relied on defendants' alleged representations that he would be "treated fairly" and, second, because he believed that his complaint would be satisfactorily resolved through in-house university procedures.

In support of his first argument, the plaintiff relies on Coke v. General Adjustment Bureau, Inc., 640 F.2d 584 (5th Cir. 1981). In Coke, the plaintiff was the general manager of the employer's Dallas, Texas office. After being demoted to the position of adjuster, he asked an officer of one of the employer's largest clients to intercede on his behalf to obtain reinstatement. The client was assured by defendant on several occasions that the plaintiff would be reinstated, and the client conveyed these assurances to the plaintiff. 640 F.2d 586. Relying on these representations, the plaintiff belatedly filed his EEOC charge. Id. at 586-87.

The facts in Coke are distinguishable from those in this case. According to Dr. Sanders' own affidavits, he was promised only that he would be treated fairly, not that he would get total relief, as promised to the Coke plaintiff. Certainly implicit in a promise of "fair treatment" is the possibility that Dr. Sanders would not be satisfied with the final result. Rather, reliance upon a representation of "fair treatment" is more closely analagous to reliance upon a grievance procedure or other dispute resolution mechanism than upon the situation described in Coke. The plaintiff has not alleged that the statements made to him misrepresented the defendants' position. Thus, the court does not find the Coke rationale to be applicable here.

The plaintiff also contends that he did not file an earlier charge because he believed that his complaint would be satisfied through Duke's in-house grievance procedures. The pendency of an in-house grievance, however, will not toll the running of the statute of limitations period. In International Union of Electrical Radio & Machine Workers v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976), the Supreme Court held that the period for filing a claim with the EEOC under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., is not tolled during the pendency of union grievance procedures. More recently, the Court applied this reasoning to a Title VII claim involving a college faculty member. In Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), a professor, having been denied tenure, filed a complaint with the college's grievance committee. The Court rejected the suggestion that the pendency of the grievance should toll the running of the Title VII limitations period:

We have already held that the pendency of a grievance, or some other method of collateral review, does not toll the running of limitations periods .... The existence of careful procedures to assure fairness in the tenure decisions should not obscure the principle that limitations periods normally commence when the employer's decision is made.

Id. at 261, 101 S.Ct. at 506 (citations and footnote omitted). See also Wagner v. Sperry Univac, 458 F.Supp. 505, 516 (E.D. Pa.1978), aff'd, 624 F.2d 1092 (3rd Cir. 1980) ("a litigant may not ... avoid the statute of limitations simply because the decision it forces him to make—whether to pursue legal remedies before all avenues of informal settlement are exhausted—is a difficult one"); Mayor v. Western Electric Co., 487 F.Supp. 84, 87 (W.D.Mo.1980) (equitable modification not justified on the sole ground that plaintiff, "presented with a difficult decision , ... chose not to follow the avenue provided by the Age Discrimination in Employment Act. That Act provides legal remedies only within its statutory framework").

The plaintiff has not demonstrated any reason why the 180-day period should be equitably modified,² either because of statements allegedly made to him by representatives of defendants or because of the pendency of his internal grievance.

C. Continuing Violations

The plaintiff also argues that even if the allegedly discriminatory acts occurred before June 25, 1980, they were "continuing in nature." The court does not find this argument to be persuasive.

In Evans v. United Airlines, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), the Supreme Court pointed out that a past discriminatory act may have a continuing impact on such things as pay and fringe benefits: "But the emphasis should not be placed on mere continuity; the critical question is whether any present violation exists." Id. at 558, 97 S.Ct. at 1889. Thus, current effects, without a present act of discrimination, do not constitute a continuing violation. Accord, Delaware State College v. Ricks, supra; 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); Lockhart v. Firestone Tire & Rubber Co., 454 F.Supp. 191 (E.D.Va.1978); Platt v. Burroughs Corp., 424 F.Supp. 1329, 1334 (E.D.Pa.1976).

The Fourth Circuit's view of Evans and of the concept of continuing violations was articulated in an en banc decision in Patterson v. American Tobacco Company, 634 F.2d 744, 751 (4th Cir. 1980). In Patterson, the court found that promotional policies previously adopted constituted a continuing practice of discrimination that locked black and women employees into less favorable job positions. It is clear that the court was distinguishing a continuing policy or systematic practice from discrete decisions and their continuing effects. Similarly, the cases cited by plaintiff, Jenkins v. Home Insurance Co., 635 F.2d 310, 312 (4th Cir. 1980), and Kim v. Coppin State College, 662 F.2d 1055 (4th Cir. 1981), involved ongoing discriminatory practices, rather than discrete, insular events.

In this case, Dr. Sanders attacks the discrete specific decisions of his supervisors. Each of the allegations in his complaint resulted from a definite decision made and communicated to him at a particular time. Significantly, Dr. Sanders does not attack any particular policy or practice of the university, i.e., the manner in which annual salary adjustments are determined. Rather, the plaintiff directs his complaint to certain specific decisions and their present effects. As such, the facts before this court fall squarely within the dictates of Delaware State College v. Ricks, supra, and Chardon v. Fernadez, ___ U.S. ___, ___, 102 S.Ct. 28, 29, 70 L.Ed.2d 6, 9 (1981), wherein the Supreme Court held that "the proper focus is on the discriminatory acts, not at the point at which the consequences of the acts become painful." Id. (quoting 449 U.S. at 258, 101 S.Ct. at 504 (emphasis in original)). In sum, the plaintiff has not established the presence of continuing violations.

D. Allegations of Discrimination

1. Secretarial Assistance

The plaintiff alleges that he has been denied secretarial assistance "routinely given to Radiology Department members under age 40." Amended Complaint at ¶ 8(B) (Am.Cplt.). According to the uncontradicted affidavit of Dr. Charles Putman, chairman of the Department of Radiology (and the plaintiff's immediate supervisor), there have been no changes in secretarial assignments in the Radiobiology Division since 1979. Accordingly, the defendants' motion is granted with respect to the plaintiff's allegations concerning secretarial assistance since they occurred prior to the ADEA's 180 day limitations period.

2. Fringe Benefits

The plaintiff alleges that he has been denied "fringe benefits...