Yeschick v. Mineta

• Citation: 114 Fair Empl.Prac.Cas. (BNA) 1202,82 Fed.R.Serv.3d 348,675 F.3d 622
• Decision Date: 06 April 2012
• Docket Number: No. 10–4151.,10–4151.
• Parties: Gary D. YESCHICK, Plaintiff–Appellant, v. Norman Y. MINETA, Secretary of Transportation, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

114 Fair Empl.Prac.Cas. (BNA) 1202

675 F.3d 622

82 Fed.R.Serv.3d 348

Gary D. YESCHICK, Plaintiff–Appellant,

v.Norman Y. MINETA, Secretary of Transportation, Defendant–Appellee.

No. 10–4151.

United States Court of Appeals, Sixth Circuit.

April 6, 2012.

ON BRIEF: Gino Pulito, Pulito & Associates, Elyria, Ohio, for Appellant. Renee A. Bacchus, Assistant United States Attorney, Cleveland, Ohio, for Appellee.Before: SUHRHEINRICH, GIBBONS, and McKEAGUE, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Plaintiff-appellant Gary Yeschick appeals the denial of his motion for relief from judgment brought pursuant to Federal Rule of Civil Procedure 60(b). Yeschick sought relief from the district court's grant of summary judgment in favor of defendant-appellee Norman Mineta, the former Secretary of the United States Department of Transportation (“Secretary”).¹ Yeschick brought an age discrimination claim against the Secretary, who oversees operations of the Federal Aviation Administration (“FAA”), alleging that the FAA violated the Age Discrimination in Employment Act, 29 U.S.C. §§ 621– 634, when it failed to rehire Yeschick as an air traffic controller. Yeschick failed to respond to both the district court's motions deadline and the Secretary's motion for summary judgment. After the district court granted summary judgment in favor of the Secretary, Yeschick filed his Rule 60(b) motion. Yeschick explained that his failure to respond to the summary judgment motion was caused by his attorney's failure to receive electronic notices of case filings due to a change of his email address, and requested relief on the grounds of excusable neglect. The district court denied the motion, citing an affirmative duty to monitor the docket and maintain a current e-mail address, as well as the prejudice the Secretary would suffer were the motion to be granted. For the following reasons, we affirm.

I.

Yeschick worked as an air traffic controller for the FAA from 1974 until 1981. In 1981, President Reagan imposed an indefinite bar on the FAA's employment of members of the Professional Air Traffic Controllers Organization (“PATCO”) who were engaging in an unauthorized strike. Yeschick joined the strike and was terminated from his position with the FAA pursuant to Reagan's order. On August 12, 1993, President Clinton issued an Executive Order that lifted the bar on employment, restoring FAA employment eligibility to PATCO members who had gone on strike.

On October 7, 1993, Yeschick applied for reemployment with the FAA as an air traffic control specialist. Shortly after applying for reemployment in 1993, Yeschick moved from Stanford Avenue in Elyria, Ohio, to Denison Avenue in Elyria, Ohio, where he lived for approximately three years before moving to his current residence in Grafton, Ohio. Yeschick did not inform the FAA that the address used on his reemployment application had changed. After reviewing Yeschick's application, the FAA sent him a copy of a Notice of Receipt of Application that included an instruction that the applicant should inform the FAA of any changes to his or her application information. A 1995 letter sent to Yeschick regarding the employment opportunities for PATCO applicants was returned to the FAA by the United States Postal Service with a notice that the forwarding order had expired. In 2000, the FAA reviewed its list of PATCO applications and eliminated from the list of eligible applicants those for whom no current contact information was available. Yeschick's application was identified as “inactive” during this process and, as a result, Yeschick's name was not included in referral lists issued for the Cleveland Air Route Traffic Control Center (“ARTCC”), which Yeschick listed as his primary choice for assignment. Yeschick was not rehired by the FAA. He reported that he did not gain any further aviation experience between 1982 and 2000 and did not keep up with any changes in FAA operations following his termination.

In October 2002, Yeschick filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) alleging that he had been discriminated against based on his age when the FAA failed to rehire him from the PATCO register. The EEOC dismissed his complaint for untimeliness pursuant to 29 C.F.R. § 1614.107(a)(2),² because although Yeschick applied to be rehired in 1993, he did not undertake any follow-up action on his application until October 3, 2002, when he contacted the EEOC. On appeal, the EEOC affirmed the dismissal, finding that Yeschick did not act with the required diligence and that his delay was not justified.

Within ninety days of the adverse EEOC decision, on December 9, 2003, Yeschick filed a complaint in the United States District Court for the Northern District of Ohio alleging age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”) by the FAA.³ Yeschick alleged that he met all of the requirements for employment as an air traffic control specialist but was not employed because of his age—he was forty-two at the time of his application—despite the fact that the FAA had open positions for controllers and open notices seeking applications for such positions. In addition, Yeschick alleged that the FAA hired persons with equivalent or lesser qualifications as air traffic control specialists, and that the FAA followed a practice of refusing to hire persons over forty years of age for air traffic controller positions.

On April 28, 2005, the FAA filed a motion to dismiss and, in the alternative, for summary judgment, arguing that Yeschick lacked standing to sue, failed to exhaust his administrative remedies, and could not prove a prima facie case of age discrimination. The district court granted summary judgment for the FAA on the grounds that Yeschick failed to timely exhaust his administrative remedies under 29 C.F.R. § 1614.105(a) because his forty-five day period to initiate contact with an EEO counselor would have run, at the latest, from the date his application was deemed inactive in 2000, but Yeschick did not contact a counselor until 2002. The district court also considered the merits of Yeschick's ADEA claim and found that the FAA would be entitled to judgment as a matter of law even if Yeschick had timely contacted an EEO counselor because a failure-to-hire claimant must “demonstrate that his desire for employment was made known to the employer.” The district court found instructive Williams v. Hevi–Duty Electric Co., 819 F.2d 620, 627–30 (6th Cir.1987), where this court held that a company's policy of only considering employment applications tendered within the prior twelve months was not a “device to discriminate.” Because Yeschick “failed to proffer evidence that he had a valid, active application for employment filed with the FAA at the time the [FAA] is alleged to have discriminated against him,” the district court concluded that he was unable to sustain his burden of establishing a prima facie case of age discrimination.

Yeschick appealed the grant of summary judgment to this court, which found that “viewing the facts in the light most favorable to Yeschick, ... there is a genuine issue of material fact as to whether he was an ‘active’ applicant after 2000.” Yeschick v. Mineta, 521 F.3d 498, 506 (6th Cir.2008). As a result, we found that Yeschick could, at a minimum, challenge the FAA's failure to hire him for one of the positions obtained by a younger applicant in the forty-five days preceding his initiation of the administrative complaint. Id. We then reversed the grant of summary judgment and remanded the case to the district court. Id.

Proceedings before the district court resumed, and the FAA served its first set of discovery requests on Yeschick on April 29, 2009. After Yeschick failed to respond to repeated requests for his discovery responses, the FAA filed a motion to compel on August 10, 2009. After receiving no discovery responses, the FAA filed a motion for sanctions on September 30, 2009, requesting the district court dismiss with prejudice Yeschick's complaint under Federal Rules of Civil Procedure 37(d)(3), 37(b)(2)(A), and 41(b) for failure to prosecute. Also on September 30, 2009, the FAA filed a motion for summary judgment arguing that (1) Yeschick could not show that his age was the “but-for” cause of the decision to classify his application as inactive because the FAA had a valid, non-age based reason for its decision to change the status of his application, (2) it had legitimate, non-discriminatory reasons for preferring other applicants, and (3) the equitable tolling and continuing violation doctrines were inapplicable to Yeschick's claim. Yeschick did not respond to the motion for summary judgment. Due to Yeschick's failure to respond, the district court relied upon the facts advanced by the FAA and found that the FAA had presented “evidence that other hired individuals were older than Mr. Yeschick, that individuals hired through the Veteran's Readjustment Act (“VRA”) and Mid America Resource Consortium (“MARC”) programs were not similarly situated, and that the Manager of the FAA's Oberlin facility, Richard Kettle, possessed legitimate non-discriminatory preference for the VRA and MARC graduates.” Accordingly, the district court held that Yeschick failed to establish that age was the “but-for” cause of the adverse employment action and granted the FAA's motion for summary judgment on January 14, 2010.

On January 23, 2010, Yeschick filed a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(1) and a motion for leave to respond to the FAA's motion for summary judgment on the grounds that his counsel failed to receive notice of the filing of the motion until the district court's judgment was docketed on January 15, 2010. Yeschick argued that his failure to respond to the motion for summary judgment was due to excusable neglect related to his counsel's failure to...