Wilkerson v. Siegfried Ins. Agency, Inc.

• Decision Date: 23 July 1982
• Docket Number: No. 80-2096,80-2096
• Citation: 683 F.2d 344
• Parties: 29 Fair Empl.Prac.Cas. 659, 29 Empl. Prac. Dec. P 32,921 Glenann WILKERSON, Plaintiff-Appellant, v. SIEGFRIED INSURANCE AGENCY, INC., an Oklahoma corporation; Cook, Treadwell& Harry, a Tennessee corporation; and Cook Industries, Inc., a Delaware corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 344

683 F.2d 344

29 Fair Empl.Prac.Cas. 659,

29 Empl. Prac. Dec. P 32,921

Glenann WILKERSON, Plaintiff-Appellant, v. SIEGFRIED INSURANCE AGENCY, INC., an Oklahoma corporation;

Cook, Treadwell& Harry, a Tennessee corporation;

and Cook Industries, Inc., a Delaware

corporation, Defendants-Appellees.

No. 80-2096.

United States Court of Appeals, Tenth Circuit.

July 23, 1982.

George Hooper of Boyd & Parks, Tulsa, Okl., for plaintiff-appellant.

John S. Athens, Tulsa, Okl. (Craig W. Hoster, Tulsa, Okl., with him on the brief) of Conner, Winters, Ballaine, Barry & McGowen, Tulsa, Okl., for defendants-appellees.

Before SETH, Chief Judge, and HOLLOWAY and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

This appeal is taken from the trial court's judgment, following a full evidentiary hearing, granting defendant-appellee Siegfried Insurance Agency, Inc. (Siegfried) a motion for summary judgment and dismissing the second amended complaint of plaintiff-appellant Glenann Wilkerson (Wilkerson). Wilkerson sought damages for her alleged wrongful employment discharge by Siegfried based upon age and sex discrimination claimed to be violative of 29 U.S.C. § 621, et seq., and 42 U.S.C. § 2000e-5.

This case was before this court previously. In Wilkerson v. Siegfried Ins. Agency, Inc., 621 F.2d 1042 (10th Cir. 1980), we reversed a summary judgment in favor of Siegfried and remanded for further proceedings on the ground that the issue of equitable tolling and estoppel advanced by Wilkerson "... cannot here be resolved on the basis of affidavits." 621 F.2d at p. 1045. By so holding, we were not suggesting that there be a finding of equitable tolling or estoppel. We simply held that because the issue involves the credibility of various witnesses, it was error for the district court, in reliance on the affidavits, to resolve the dispute as to whether Wilkerson's failure to comply with the 180-day statutory time limit within which she was to file a notice of intent to sue with the Department of Labor under 29 U.S.C. § 626(d)(1) or the statutory limit within which to file her sex discrimination charge as required by Title VII, was subject to possible tolling and estoppel. We did uphold the summary judgment finding that Wilkerson was discharged by Siegfried on March 24, 1975 and that none of the later filings by Wilkerson were timely as required by the respective statutes. The primary issue to be resolved on remand, then, was the merit, if any, in Wilkerson's contention that she did not timely file the required notices because she was misled by Siegfried, thus causing her to file beyond the statutory time limits. Also considered was Wilkerson's contention that her ignorance of the filing requirements was attributable to Siegfried's failure to post notices as required by the statute.

In Wilkerson v. Siegfried, supra, we recommended that the trial court, on remand, examine the tolling-estoppel guidelines set forth in Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975). There the court recognized that secret preferences in hiring and subtle means of illegal discrimination are unlikely to be readily apparent to the individual discriminated against and that employers who discriminate often cloak their policies with a semblance of rationality, and may seek to convey to the victim an attitude of neutrality or even sympathy. On this predicate, the Reeb court held that the time period prescribed under the statute would not begin to run until the facts that would support a charge of discrimination "... were apparent or should have been apparent to a person with a reasonably prudent regard for his rights similarly situated to the plaintiff." 516 F.2d at p. 931. In our view, the district court, in the instant case, properly applied the Reeb standard. In light of the limited inquiry directed by our remand, we will not repeat in detail the facts set forth in our prior opinion, except to the extent necessary for our review here.

On appeal, Wilkerson contends that the trial court erred in finding that the evidence did not support her contention that equitable considerations, i.e., untrue information given to her by Siegfried which she relied upon to her detriment (in that it prevented her from timely discovering facts of discrimination), estopped Siegfried from asserting the timely filing requirements as a defense. Wilkerson further contends that Siegfried did not post notices of her right to file her age and discrimination charges.

I.

The key, specific ground relied on by Wilkerson was pinpointed by the trial court: That on March 14, 1975, when Siegfried officers advised her that she was discharged from her position with that agency because her job had been discontinued in that her duties or a substantial part of her duties were going to be transferred to the main office in Memphis, Tennessee, they knew that these representations were false.

The district court found, and we agree, that there is substantial evidence supporting its findings that Wilkerson was terminated for the reasons she was told and that these reasons were not a pretext for discrimination; further, that there are no other equitable considerations which would excuse Wilkerson's late filing of her charges of age and sex discrimination.

We affirm the trial court after a full review of the record. In Lyles v. American Hoist & Derrick Co., 614 F.2d 691, 694 (10th Cir. 1980), we defined the parameters of our review:

Findings of the trial court must be upheld unless they are determined to be clearly erroneous. Francia v. White, 594 F.2d 778 (10th Cir. 1979); Volis v. Puritan Life Insurance Company, 548 F.2d 895 (10th Cir. 1977). A trial court's findings are not to be deemed clearly erroneous unless, on the entire record, we are left with a definite and firm conviction that a mistake has been made, Diggs v. Western Electric Company, Inc., 587 F.2d 1070 (10th Cir. 1978), and that a judgment cannot be affirmed on any ground arising from the record. Jaffke v. Dunham, 352 U.S. 280 (77 S.Ct. 307, 1 L.Ed.2d 314) (1957); Casto v. Arkansas-Louisiana Gas Company, 597 F.2d 1323 (10th Cir. 1979).

The crux of Wilkerson's contention is that Siegfried officers misrepresented the true basis for her termination because rather than discontinuing the duties she had performed and transferring them to the Memphis main office, Siegfried, within one week of her termination, employed one Steve Snyder to fill and perform the position and duties she had performed. Wilkerson thus argues that her position was not in fact eliminated or her duties transferred to Memphis; rather, that Snyder was employed to fill her position and to perform her duties with Siegfried. This, then, was the claimed pretext creating the discriminatory termination.

We believe that the trial court's oral and written findings are supported with substantial evidence in the record which we summarize, as follows:

Cook, Treadwell & Harry of Memphis, Tennessee, is a parent insurance company with some fourteen local agencies or divisions, which, commencing in 1971, included Siegfried of Tulsa, Oklahoma. One Steve Snyder first took up employment with CTH in Memphis in September, 1972. He was assigned to the auditing department. His duties required that he "ride the circuit" of the CTH agencies for auditing purposes.

In January-February, 1975, Hank Grey, controller, Van Zeiler, vice-president of the local agencies, accountant Don Burkett and Snyder had a number of meetings in the CTH office relative to the need to rectify accounting and budget reporting problems CTH...