Wilkerson v. Siegfried Ins. Agency, Inc., 79-1287

• Decision Date: 15 July 1980
• Docket Number: No. 79-1287,79-1287
• Citation: 621 F.2d 1042
• Parties: 22 Fair Empl.Prac.Cas. 1583, 22 Empl. Prac. Dec. P 30,835 Glenann WILKERSON, Appellant, v. SIEGFRIED INSURANCE AGENCY, INC., an Oklahoma Corporation; Cook, Treadwell & Harry, Inc., a Tennessee Corporation; and Cook Industries, Inc., a Delaware Corporation, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1042

621 F.2d 1042

22 Fair Empl.Prac.Cas. 1583,

22 Empl. Prac. Dec. P 30,835

Glenann WILKERSON, Appellant, v. SIEGFRIED INSURANCE AGENCY, INC., an Oklahoma Corporation;

Cook, Treadwell & Harry, Inc., a Tennessee

Corporation; and Cook Industries, Inc.,

a Delaware Corporation, Appellees.

No. 79-1287.

United States Court of Appeals, Tenth Circuit.

Argued Jan. 25, 1980.

Decided April 14, 1980.

Rehearing Denied July 15, 1980.

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

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

Before HOLLOWAY, McWILLIAMS and BARRETT, Circuit Judges.

McWILLIAMS, Circuit Judge.

Glenann Wilkerson, a fifty-year old woman, brought an action against Siegfried Insurance Agency, Inc., an Oklahoma corporation; Cook, Treadwell & Harry, Inc., a Tennessee corporation; and Cook Industries, Inc., a Delaware corporation. ¹ Wilkerson alleged that she had been wrongfully discharged from her employment because of her age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq., and because of her sex, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5. The gist of the complaint was that after 29 years of employment with Siegfried Insurance Agency, Wilkerson's employment was terminated on the pretext that her job was being eliminated. According to the complaint, Wilkerson later learned that the position had not been abolished, and in fact had been filled by a younger person of the opposite sex.

The defendants filed motions for summary judgment with supporting affidavits. Counter affidavits were filed by Wilkerson. The trial court granted the motions and entered summary judgment in favor of the three defendants. Wilkerson now appeals.

The basis for the trial court's action on the age discrimination charge was that Wilkerson had failed to file a notice of intent to sue with the Department of Labor within 180 days after the alleged unlawful practice occurred, as required by 29 U.S.C. § 626(d)(1). As concerns the charge of sex discrimination, the trial court held that Wilkerson had failed to timely file a charge of sex discrimination as required by Title VII and the local Oklahoma statutes regarding sex discrimination. 42 U.S.C. § 2000e-5(e); 25 O.S.1975, § 1502(a).

Recognizing that under Dartt v. Shell Oil Company, 539 F.2d 1256 (10th Cir. 1976), affirmed per curiam by an equally divided court, 434 U.S. 99, 98 S.Ct. 600, 54 L.Ed.2d 270 (1977), statutory time limitations of the type here involved are subject to possible tolling and estoppel, the trial court held that Wilkerson was not entitled to an equitable tolling of the several statutory time limitations here under consideration. This holding was based on affidavits, and possibly some depositions. ²

On another matter, the trial court held that Wilkerson was an employee of Siegfried, and was not an employee of either Cook, Treadwell & Harris, Inc., or Cook Industries, Inc. It was on this additional ground that summary judgment was entered in favor of those two companies.

The parties agree that whether Wilkerson filed timely notices pertaining to age and sex discrimination depends, in the first instance, on when she was discharged from her job by Siegfried. The affidavits show that on March 14, 1975, Wilkerson was advised that her employment was terminated, effective immediately, and that she was sent home from work on that date. She was also advised that she would receive three weeks' vacation pay and six weeks' severance pay. Accordingly, on the books of Siegfried, Wilkerson's termination date was carried as May 16, 1975, which date included the nine weeks' vacation and severance pay.

As indicated, it is agreed that if Wilkerson's employment was terminated on March 14, 1975, then none of the notices subsequently filed by Wilkerson was timely filed. Wilkerson's position is that the true date of her termination was not March 14, 1975, but May 16, 1975, when she was separated from the company's payroll records. We disagree and believe that this matter was disposed of properly by the trial judge on the basis of the affidavits before him.

If Wilkerson was discharged on March 14, 1975, it is self-evident that Siegfried could not be guilty of discriminatory employment practices against Wilkerson after that date. In arguing that the true date of her termination was May 16, 1975, as carried on the company's books, Wilkerson relies on Moses v. Falstaff Brewing Corporation, 525 F.2d 92 (8th Cir. 1975). That case is supportive of Wilkerson's position, but we believe Moses represents a minority view. The better rule is set forth in Bonham v. Dresser Industries, Inc., 569 F.2d 187 (3rd Cir. 1977), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978).

In Bonham, the Third Circuit, after rejecting the rule of Moses, held that where unequivocal notice of termination and the employee's last day of work coincide, then the allegedly unlawful act will be deemed to have occurred on that date, notwithstanding the employee's continued receipt of certain employee benefits, such as periodic severance payments or extended insurance coverage. To hold to the contrary, said the Third Circuit, would penalize a company for giving severance pay or other extended benefits after the employment relationship has in fact ended. To like effect, see Krzyzewski v. Metropolitan Government of Nashville and Davidson County, 584 F.2d 802, at 805 (6th Cir. 1978) and Ricks v. Delaware State College, 605 F.2d 710 at 711 (3rd Cir. 1979). Indeed, in Greene v. Carter Carburetor Co., 532 F.2d 125 (8th Cir. 1976), a race and sex discrimination case, the Eighth Circuit held that the fact that a discharged employee continued on the payroll because of fringe benefits did not mean that he was not discharged until he was actually separated from the payroll, and that the earlier date of actual discharge triggers the commencement of the time period...