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

K.K. HALL, Circuit Judge,

dissenting:

I am profoundly dismayed by the majority’s disposition of this appeal. The most cursory review of the record demonstrates beyond peradventure that, on remand, the district court misapplied our earlier decision in this matter. Furthermore, it treated that opinion with palpable disdain. Today, the majority not only condones that action, it applauds it.

In Felty v. Graves-Humphreys, 785 F.2d 516 (4th Cir.1986) (“Felty 7”), we concluded that a factual question, regarding whether the employer’s coercive behavior had delayed Felty’s efforts to enforce his rights under the Age Discrimination in Employment Act (“ADEA”), rendered summary judgment on the basis of the statutory limitation period inappropriate. We held that, if Felty could prove such conduct on behalf of Graves-Humphreys, the employer would be estopped from asserting any portion of the ADEA’s 180-day limitation period in which such improper conduct retained its effect.

On remand, the district court conducted a new evidentiary hearing on the issue of equitable estoppel which it scathingly described as a “fear of filing” argument that had never been asserted until “the fourth circuit provided ... [Felty] with a script.” In view of the district court’s evident displeasure, it is unsurprising that it again found summary judgment appropriate. It was also, in my view, clearly wrong.

The district court held that there could be no genuine question regarding whether Felty had been coerced by comments made by Francis Yates, a Graves-Humphreys vice president, because (1) he supposedly ignored that admonition and “discussed his termination with virtually everyone____”* and (2) Felty admitted that if his attorney had advised him to file a complaint in February, 1983, he would have done so. The *1131 majority believes that both conclusions support an award of summary judgment. I disagree.

In Felty I, we held that the essential inquiry in cases of equitable estoppel focuses upon the “length of time that an employer’s coercion is effective.” Felty, 785 F.2d at 520 . Coercion loses its improper effect when the employee takes an affirmative step to enforce his rights. We expressly stated, however, that “private conversations with friends in the work force would not qualify as an affirmative act.” 2 Id.

Initially, Felty had stated that he discussed his pending termination in confidence only with one friend from the time he was notified by Yates in November of 1982 until he sought legal advice in February of 1983. On remand, there was some indication that Felty may have talked about his problem in confidence with two other friends. Assuming that they took place at all, not only would those two additional conversations be something less than discussions with “virtually everyone,” they would also be substantially irrelevant in light of our holding in Felty I.

It is also of scant significance whether Felty would have filed his ADEA claim had he been advised to do so by his attorney. Although we left this question open in Felty I, it is likely that by seeking legal assistance in February, 1983, Felty engaged in an affirmative act that ended the period of time in which the employer’s alleged coercion was effective. If so, the 180-day period of limitations unquestionably began to run. Any actions taken or decisions made by Felty after that date have no relevance, however, to the question of whether Graves-Humphreys should be estopped from counting any days prior to that time toward the 180 limit.

The majority also chooses to ignore a significant portion of the opinion below in which the district court’s misinterpretation of Felty I was unmistakable. Citing Kazanzas v. Walt Disney World Co., 704 F.2d 1527 (11th Cir.), cert. denied, 464 U.S. 983 , 104 S.Ct. 425 , 78 L.Ed.2d 360 (1983), the court concluded that even if Felty had been delayed by Graves-Humphreys until February, he could not assert estoppel since he still had ample time within the statutory period in which to file a complaint.

Kazanzas , which deals with equitable tolling based on an employee’s lack of knowledge, is not only inapposite, the district court’s reliance on that decision evidences a substantial misunderstanding of the implication of equitable estoppel in the present context. The effect of equitable estoppel is to exclude from the computation of the statutory limitation period all time in which the conduct giving rise to the estoppel has operated. We made this point beyond question in Felty I when we stated that “if Graves-Humphreys exerted improper influence that lasted until February, 1983, the EEOC complaint filed in June would be timely.” Felty, 785 F.2d at 520 . That statement cannot be reconciled with the district court’s citation to Kazanzas .

Despite the majority’s lengthy and strained examination of the proper scope of summary judgment, I believe it is clear that material questions of fact remained unresolved in this case. Felty testified, on remand, that he was threatened with immediate discharge if he discussed his termination with anyone in or out of the company. He further testified that as a result of that threat, he failed to seek legal assistance for nearly three months. The issue of employer coercion in this instance thus becomes a question of witness credibility and not as the majority suggests “unsupported speculation.” 3

By failing to offer any contrary evidence or to cross-examine Felty on the nature of *1132 his conversation with Yates, Graves-Humphreys arguably conceded for purposes of summary judgment that the threat was made. Furthermore, Graves-Humphreys offered no additional relevant evidence to demonstrate that the alleged coercion was either ineffective or lost its force prior to February, 1983. At a minimum, the question of whether an equitable modification of the ADEA limitation period was appropriate was an issue that should have gone to the trier of fact.

By upholding the grant of summary judgment in this case, the majority sanctions a clear distortion of our previous decision. I fail to see how we can expect the district courts to follow our pronouncements if subsequent panels of this Court fail to accord proper deference to those decisions. I, therefore, respectfully dissent.

. The majority opinion subtly mischaracterizes and weakens this clear holding by citing Felty I for the proposition that conversations with friends are not "per se evidence” of lack of coercion. The majority's interpretation allows consideration of that which we determined in Felty I should not be considered.

. This issue involves far more than the "mere existence of a scintilla of evidence.” A proper resolution requires both an assessment of Felty’s credibility and a weighing of the potential impact of the statements allegedly made by Yates. Rather than an issue so "one sided that one party must prevail as a matter of law,” it presents a question "on which ... [a] jury could reasonably find for the plaintiff.” Under Anderson v. Liberty Lobby, — U.S. -, 106 S.Ct. 2505, 2512 , 91 L.Ed.2d 202 (1986), that is *1132 more than sufficient to defeat a motion for summary judgment.