N. Brown FELTY, Appellant, v. GRAVES-HUMPHREYS COMPANY, Appellee

WILKINSON, Circuit Judge,

dissenting:

Judge Charles E. Clark, the architect of the Federal Rules of Civil Procedure, warned in the early years of Rule 56 that appellate courts must review summary judgments from a perspective of conclusion rather than as an opportunity for redirecting the production of facts. “Care should be taken,” he wrote, “to make the analogy [between summary judgment and directed verdict] as exact as circumstances permit; the ruling is to be made on the record the parties have actually presented, not on one potentially possible.” Madeirense do Brasil S/A v. Stuhnan-Emrick Lumber Co., 147 F.2d 399, 405 (2d Cir.), cert. denied, 325 U.S. 861 , 65 S.Ct. 1201 , 89 L.Ed. 1982 (1945). The majority on this appeal has ignored that injunction and, in asking the district court to determine whether corporate intimidation forced Felty to miss his filing deadline, has introduced a new case theory that depends entirely on a contention of fact which has never been suggested by either party. Even worse, the court’s unsupported contention is contradicted as a point of fact by the parties’ record and is destructive as a point of law to the statutory limitations period in the Age Discrimination in Employment Act (ADEA).

I.

The majority understates the record in reporting that Felty has throughout this motion “primarily argued the issue of his lack of knowledge” of Graves-Humphreys’ discriminatory conduct. Ante at 519. Felty has in fact relied almost exclusively on that approach to the delinquency of his EEOC complaint, devoting twenty-two of *521 the twenty-five pages of argument in his opening brief and sixteen of the eighteen pages in his reply brief to variations of the claim that on November 12 he lacked the awareness necessary to assume a filing responsibility. The only exception to this focus, consuming all of his remaining brief space, has been Felty’s alternate assertion that the limitations period did not begin on November 12 because the termination notice was equivocal. Felty’s deposition testimony and his termination notice establish, however, that he knew on November 12 everything necessary to file an EEOC charge, including the inevitability of his dismissal on March 31. The majority correctly finds that Felty did not raise a genuine issue of material fact on either of those theories. Ante, at 518-519.

The majority’s view of equitable estoppel because of an alleged employer threat is another matter. “A finding of estoppel must rest on consideration of several factors,” according to the decision to which the majority refers. “Of critical importance is a showing of the plaintiff’s actual and reasonable reliance on the defendant’s conduct or representations.” Naton v. Bank of California, 649 F.2d 691, 696 (9th Cir.1981) (emphasis added). The same requirement of reliance is recognized in all cases reviewing claims of equitable estoppel. See, e.g., Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 , 104 S.Ct. 1723, 1725 , 80 L.Ed.2d 196 (1984); Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 235 , 79 S.Ct. 760, 763 , 3 L.Ed.2d 770 (1959).

Felty has not even hinted that any reliance on Graves-Humphreys’ alleged threat delayed the filing of his age discrimination charge. He did not claim delay from such coercion in his complaint, in his deposition, in his affidavit, in his testimony, in his arguments to the district court, or in his briefs on appeal. Counsel conceded as much to this court in oral argument:

The Court: Did the judge make any ruling as to whether he was in fact intimidated to refrain from filing his claim?

Counsel: No, I don’t believe—

The Court: Did you ask him to?

Counsel: I don’t believe so.

In fact, the argument of delay due to coercion was first raised, sua sponte, by this court in appellate oral argument. Introduction of the issue at that point is simply too little, too late. “Legal memoranda and oral argument are not evidence and do not create issues of fact capable of defeating an otherwise valid summary judgment.” Estrella v. Brandt, 682 F.2d 814, 819-20 (9th Cir.1982). This case is not one in which the appellant has established in district court the factual predicate for tolling the limitations period but has failed to raise the legal theory until appeal. Cf Ricard v. Birch, 529 F.2d 214 (4th Cir.1975). Felty has not even alleged, much less confirmed by evidence, one of the most important facts necessary to support the contested legal theory.

A void of this dimension in the record cannot be filled by the axiom that “on summary judgment the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion.” United States v. Diebold, 369 U.S. 654, 655 , 82 S.Ct. 993, 994 , 8 L.Ed.2d 176 (1962). That principle describes the proper reading of the parties’ conflicting accounts; it does not authorize the court to interject its own conjectures. As this court said in Atlantic States Construction Co. v. Robert E. Lee & Co., Inc. of South Carolina, 406 F.2d 827, 829 (4th Cir.1969), “it is not the office of Rule 56 to preserve purely speculative issues of fact for trial.” See also Melhorn v. AMREP Corporation, 373 F.Supp. 1378, 1381 (M.D.Pa.1974) (“there cannot be estoppel by inference”). The leading commentators agree that “the motion should not be denied on the mere chance that there might be facts that would toll the statute.” Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2734 at 421. Reversal of summary judgment in this situation ignores the burdens of production created by Fed.R.Civ.P. 56 and undermines the incentive for each party to develop *522 promptly the evidence in support of its case. It is also wholly unfair to appellee which now must endure a remand on a matter which appellant had every opportunity to raise in the first instance but did not.

II.

Where we turn from the silences in the record to the actual contentions of fact, we can see further that Felty’s omission of any coercion argument was fully explainable. The evidence before the court suggests that Felty did not raise the argument because he was in fact unaffected by Graves-Humphreys’ alleged threat to fire him upon discussion of the pending dismissal. Felty reports that he violated the command immediately by talking with a fellow employee on November 12 about the termination. He reports also that he again violated the command by talking with an attorney in February about the termination. According to Felty’s deposition, GravesHumphreys “did not want us to say anything about it to anyone anywhere or we could be terminated right there.” His conversation with the co-worker flouted this order at least as fully and as openly as his conversation with the attorney, indicating that Felty felt as little intimidation in November as he did in February. * To adopt a legal theory from a silent record is error enough; to nurture it in the face of contrary evidence from its supposed beneficiary is error compounded.

III.

The majority also misapprehends the operation of the statutory limitations period in ADEA actions involving allegations of employer intimidation. Even if the record did present the question of the effect of coercion on Felty’s delinquent filing, summary judgment would nonetheless be appropriate because that question is not, under a proper analysis of equitable estoppel and the ADEA, a dispute about a “material fact” under Fed.R.Civ.P. 56(c). See Leas v. Courtney Company, 261 F.2d 13, 15 (4th Cir.1958) (affirming summary judgment despite “vast disagreement” between parties on immaterial issues). The ADEA encourages prompt recourse to legal remedies once the employee becomes aware of the elements of his claim. Price v. Litton Business Systems, Inc., 694 F.2d 963, 965 (4th Cir.1982). Felty’s delay in filing on a claim of which the court is agreed he was aware is therefore insufficient as a matter of law to bar invocation of the 180-day limitations period. For this reason, too, summary judgment should be affirmed.

Congress foresaw the possibility of employer retaliation and disarmed it in the ADEA at 29 U.S.C. § 623 (d), which establishes that “It shall be unlawful for an employer to discriminate against any of his employees ... because such individual ... has opposed any practice made unlawful by this section, or because such individual ... has made a charge, testified, asserted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.” This anti-retaliation provision is enforced under 29 U.S.C. § 626 , entitling a person who has been fired in willful violation of the ADEA to reinstatement and to lost pay, lost benefits, liquidated damages, post-judgment interest, and attorneys’ fees. Spagnuolo v. Whirlpool Corp., 641 F.2d 1109 (4th Cir.), cert. denied, 454 U.S. 860 , 102 S.Ct. 316 , 70 L.Ed.2d 158 (1981); see also Cline v. Roadway Express, Inc., 689 *523 F.2d 481, 489 (4th Cir.1982) (pre-judgment interest available in absence of liquidated damages). In appropriate circumstances, a plaintiff might even be able to forestall discriminatory action through preliminary injunctive relief. See Farkas v. New York State Department of Health, 554 F.Supp. 24 (N.D.N.Y.1982), aff'd, 767 F.2d 907 (2d Cir.1985). The ADEA, in short, guaranteed Felty that he would suffer no adverse employment consequences from reporting his suspicions to the EEOC. Felty testified in his deposition that he knew on November 12 of the laws protecting him from age discrimination, and he cannot in any event rely for justification on an ignorance of his legal rights. See Larson v. American Wheel and Brake, Inc., 610 F.2d 506, 510 (8th Cir.1979). He can point only to a lack of confidence in the law, an excuse that this court cannot and should not recognize.

If the majority’s view is to prevail, the 180-day limitations period will become a disputed issue in every case, effectively limiting the use of summary judgment. A party can wait indefinitely to bring a claim of which he is aware so long as he alleges a threat in subsequent legal proceedings. This scenario vitiates the inducement to prompt action provided by the protection from employer retaliation in the ADEA. It undercuts the 180-day limitations period which serves the valuable purposes of promptly notifying prospective defendants about a complaint, of facilitating informal methods of reconciliation, Greene v. Whirlpool Corp., 708 F.2d 128, 130 (4th Cir.1983), ce rt. denied, 464 U.S. 1042 , 104 S.Ct. 1707 , 79 L.Ed.2d 171 (1984), and of resolving disputes upon fresh recollections. In applying the ADEA, we must respect this provision and these purposes as well as the competing ADEA objective of protecting workers threatened with retaliation. “Statutes should be read, if possible, as harmonious texts.” Leaf Tobacco Exporters Association, Inc. v. Block, 749 F.2d 1106, 1115 (4th Cir.1984). That harmony is achieved in this case by enforcing the limitations period and relying on the remedial apparatus to discourage reprisals; the harmony is disrupted by ignoring the limitations period and bypassing the remedial mechanisms. Because the majority adopts the latter course, its reasoning fails to square with the law as much as it fails to square with the facts.

I would affirm the judgment of the district court.

Even if Felty was afraid until February to bring his complaint to the EEOC and even if that fear was sufficient to suspend the ADEA limitations period, the majority is not necessarily correct in its assertion that “if Graves-Humphreys exerted improper influence that lasted until February, 1983, the EEOC complaint filed in June would be timely.” Ante at 520. This assertion overlooks the principle that “if there is still ample time to institute the action within the statutory period after the circumstances inducing delay have ceased to operate, a plaintiff who failed to do so cannot claim an estoppel." Kazanzas v. Walt Disney World Co., 704 F.2d 1527 , 1531 n. 4 (11th Cir.), cert. denied, 464 U.S. 982 , 104 S.Ct. 425 , 78 L.Ed.2d 360 (1983) (citations omitted). As the majority believes that Felty knew on November 12 everything that he needed to know in order to file an age discrimination charge, I fail to see why the period from February to June would not be ample.