# Jack Colgan v. Fisher Scientific Company > Court of Appeals for the Third Circuit · June 19, 1991 · 935 F.2d 1407 URL: https://www.frixlaw.com/law-library/cases/9481719 ## Case - **Full name:** Jack COLGAN, Appellant, v. FISHER SCIENTIFIC COMPANY - **Court:** Court of Appeals for the Third Circuit - **Decided:** June 19, 1991 - **Citations:** 935 F.2d 1407; 56 Empl. Prac. Dec. (CCH) 40,874; 56 Fair Empl. Prac. Cas. (BNA) 106; 1991 U.S. App. LEXIS 12676; 1991 WL 104662 - **Precedential status:** Published - **Opinion:** Dissent by Cowen - **Judges:** Greenberg, Cowen, Buckwalter, Sloviter, Becker, Stapleton, Mansmann, Hutchinson, Scirica, Nygaard, Alito - **Cited by:** 100 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9481719 ## How later opinions describe it (automated extraction) - stating that in rejecting expert affidavit from consideration on summary judgment, district court’s citation to Fed.R.Civ.P. 56 “was not in itself determinative as it should have been considered in tandem with Fed.R.Evid. 703” - applying Ricks in the employment context to a tentative evaluation that led to a later dismissal; only the later dismissal triggered the accrual of the statute of limitations because the evaluation was not a final employment decision - finding notice lacking even where an evaluation explicitly warned that adverse actions would be taken if the employee's performance did not improve ## Opinion text COWEN, Circuit Judge, dissenting. Today this Court holds that the limitations period for filing a complaint of age discrimination with the Equal Employment Opportunity Commission (“EEOC”) under the Age Discrimination in Employment Act (“ADEA”) did not begin to run when an employee received a negative performance evaluation because the employer failed to show that the employee was or should have been aware of its policy whereby employees with poor performance ratings would be discharged first during reductions in force, and because the evaluation stated the employee would be re-evaluated at a later date. Because I disagree that the limitations period commences only if a purportedly discriminatory performance evaluation has an immediate consequence or the employee is actually aware it has rendered him vulnerable to termination, I respectfully dissent. I would hold that receipt of a purportedly discriminatory performance evaluation is sufficient to start the ADEA limitations period if a reasonable employee would be aware that the evaluation potentially could have some significant detrimental impact on his employment status. I would also establish a standard for determining when the ADEA limitations period begins to run that would provide some practical guidance to future inquiries. 1 I. I dissent from the majority’s determination that the ADEA limitations period did not begin to run when the unlawful employment practice occurred, namely when Colgan was given the negative performance evaluation that he believed to be motivated by his age, because it strays too far from Supreme Court precedent and the statute itself. The ADEA requires an employee to file a complaint with the EEOC within 300 days of the unlawful practice. 29 U.S.C. § 626 (d) (emphasis added). The Supreme Court has emphasized that the proper focus for determining the beginning *1425 of the limitations period is the discriminatory act, not its consequences. United Air Lines, Inc. v. Evans, 431 U.S. 553 , 97 S.Ct. 1885 , 52 L.Ed.2d 571 (1977) (declining to characterize the effects of the past discriminatory practice as a “continuing violation” and refusing to give the effects of the past practice independent present status for purposes of the limitations period); Delaware State College v. Ricks, 449 U.S. 250, 258 , 101 S.Ct. 498, 504 (“[t]he proper focus is upon the time of the discriminatory act, not upon the time at which the consequences of the act become most painful.”) (quoting Abramson v. University of Hawaii, 594 F.2d 202, 209 (9th Cir.1979)); Lorance v. AT & T Technologies, 490 U.S. 900 , 109 S.Ct. 2261 , 104 L.Ed.2d 961 (1989) (violation occurred when seniority system adopted, not when plaintiffs were actually demoted under it). As the majority points out, these cases can be distinguished on the basis of their facts. They nonetheless provide guidance that this Court should not ignore. Here there is no dispute that the purportedly unlawful practice was the evaluation Colgan received in August of 1986. I agree with the majority’s position that the limitations period in 29 U.S.C. § 626 (d) begins to run when the unlawful practice occurs only if the employee has some sort of notice that the practice could affect him. It would be patently unfair to require an employee to file a complaint about a practice which he has no idea would hurt his employment status. By holding that the limitations period is not triggered by a negative evaluation where it does not have immediate consequences or the employee is not actually aware of an explicit company policy under which the evaluation could cause him to be discharged, however, the majority expands the notice requirement too far. The court holds, in effect, that the receipt of an unlawful employment evaluation does not commence the limitations period unless the employee knows or should know he definitely will be harmed. In so holding the majority disregards the essence of the Supreme Court’s most recent case in the area. The Court in Lorance explicitly held that the discriminatory act need not impose an inevitable harm on the employee in order to start the limitations period. To illustrate that the mere possibility of future harm is sufficiently concrete to trigger the limitations period, the Court analogized the harm caused by an unlawful seniority system to the harm caused by an accident insurance policy with less coverage than bargained for. Id. at 907 n. 3, 109 S.Ct. at 2266 n. 3. The Court noted that the insured is harmed upon receipt of the policy with insufficient coverage, despite the fact that there is only a possibility he will actually file a claim under the policy. Id. Requiring that an employee know he will actually be terminated during a reduction in force is like requiring an insured to know he will actually need to file a claim under his insurance policy. The majority attempts to distinguish this case from Lorance by arguing that the potential harm from the imposition of a discriminatory seniority system is more concrete than the potential harm from a negative performance evaluation. The Court concludes that the adoption of a seniority system fixes an employee’s rights vis-a-vis his co-workers, but a performance evaluation does not. Maj. op. at 1419. This conclusion ignores the function performance evaluations serve in the work place. Employers use these evaluations to compare employees in order to make decisions regarding promotion, demotion, and termination. Performance evaluations do, therefore, fix an employee’s rights vis-a-vis his co-workers. The majority also attaches great significance to the fact that the evaluation indicated Colgan would be re-evaluated in sixty to ninety days, finding that Colgan could not have known that negative consequences might flow from the evaluation before he had an opportunity to improve his performance. Maj. op. at 1419-20. This finding would be warranted only if the record showed that the negative evaluation would be expunged from Colgan’s personnel file if he had improved his performance. To the contrary, however, the negative August 1986 evaluation would have remained part of Colgan’s personnel file, even if he *1426 had been re-evaluated and had not been discharged in December of 1986. The possibility that it would eventually cause him to be denied promotion, demoted or terminated would not have been eliminated by a subsequent positive evaluation. By holding that the limitations period did not commence because Colgan was unaware of the actual consequences that would flow from the evaluation, the majority ignores the fact that Colgan had a cause of action under the ADEA based on the purportedly unlawful evaluation itself at the time he received it. The ADEA prohibits discriminatory practices that could merely “affect an individual's status as an employee,” as well as final employment actions. See 29 U.S.C. § 623 (a)(2). Courts have explicitly recognized an employee’s cause of action for a discriminatory performance evaluation. See, e.g., Smith v. Secretary of Navy, 659 F.2d 1113 (D.C.Cir.1981) (Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., creates a cause of action on behalf of an employee who receives a discriminatory job performance evaluation, but who cannot demonstrate that the evaluation caused him to be denied a specific job or promotion). The appropriate relief in such an action is ex-pungement of the evaluation from the employee’s personnel file. In tying the beginning of the limitations period to notice of final employment action, the majority seems to assume that potential discharge is the only actionable consequence of a negative evaluation, and ignores the fact the ADEA creates a cause of action for other, non-final discriminatory practices. II. Today’s decision adds nothing of practical significance to future determinations regarding the parameters of the ADEA limitations period. The Court strictly limits its holding to the case subjudice, giving no indication as to how concrete the potential harm from a performance evaluation would have to be in order to trigger the limitations period. It explains its failure to provide any future guidance by the Supreme Court’s admonition in Ricks that, because complaints regarding employment discrimination arise in circumstances that vary widely, the determination regarding when the limitations period begins to run must be made on a case-by-case basis. Maj. op. at 1421. That the inquiry is necessarily fact-specific, however, does not mean that there can be no standards to guide it. Following Lorance’s holding that an unlawful employment practice can commence the limitations period even if it only causes some potential future harm, I would adopt a “reasonable employee” standard for determining whether a negative performance evaluation starts the limitations period. Specifically, the time during which an employee must file a complaint with the EEOC pursuant to 29 U.S.C. § 626 (d) would begin when the employee receives an evaluation he suspects to have been motivated by his age, if that evaluation is such that a reasonable employee would know that it could have some significant detrimental impact on his employment status. I emphasize that this standard would tie the commencement of the limitations period to a reasonable employee’s knowledge at the time he receives the evaluation. The running of the limitations period could not be tied to an event that threatened an employee’s status only in hindsight. Employers could not be permitted to conceal potential harm from discriminatory acts and then be shielded from suit by their subterfuge. In considering whether a reasonable employee would have known that a performance evaluation could have a detrimental impact, the trier of fact would consider at least three factors. 2 The first is the likelihood that the evaluation will remain part of the employee’s employment record for an extended period of time. Obviously, written evaluations have more permanency than oral evaluations, but it is possible for oral evaluations to remain part of an em *1427 ployee’s record for some time as well. Secondly, the formality of the evaluation would be considered. Evaluations issued as part of a company’s formal evaluation procedure reflect a greater amount of deliberation by the employer and may have a greater impact on the employee’s status than would extemporaneous comments. Finally, the trier of fact would consider how negative the evaluation was. An employee who receives a rating that is well-below average is more likely to be aware of a potential negative impact on his employment status than an employee who is accustomed to receiving ratings of “excellent” and suddenly receives a rating of merely “very good.” Applying this standard here, I would hold that Colgan’s action is time-barred by virtue of his failure to file an EEOC complaint within 300 days of receiving the purportedly discriminatory evaluation. 3 Viewing the evidence most favorably to Colgan, there is no issue of material fact as to whether he should have been aware that his last performance evaluation could have had a detrimental impact on his employment status. The record before the Court unquestionably establishes that Colgan should have known that this evaluation might harm him on the day he received it. The evaluation was formal and written. That it was also extraordinarily negative is illustrated by the testimony of one of Fisher’s supervisors to the effect that Colgan’s August 1986 evaluation was the worst he had ever seen. The evaluation even specified that Colgan could be demoted, reassigned, or separated from the company if he did not improve. 4 In reaching its decision, the majority relies on the fact that Fisher failed to show that Colgan should have been aware of the specific policy whereby employees with poor performance records were discharged first during reductions in force. This fact should not be dispositive. Even if Colgan was unaware of this explicit policy, any reasonable employee in his situation would have known that a negative performance rating harms his status. The results of this harm could range from potential discharge to not receiving a promotion. Moreover, the record indisputably indicates that Colgan was, in fact, aware that the August 1986 evaluation could hurt him. Colgan appealed that evaluation through the intra-company performance evaluation appeal process. He would not have bothered to appeal the evaluation if he did not believe that it might hurt his employment status. III. Finally, I turn to the majority’s contention that requiring an employee to file a complaint with the EEOC upon receipt of an evaluation he suspects to be discriminatory would have a disruptive impact on the work place. Our reversal by the Supreme Court in Ricks indicates that concerns of potential work place disruption from requiring early EEOC filings should not affect the limitations period analysis. In Ricks , this Court had held that the limitations period began to run when the plaintiff’s employment was terminated, based partially on the rationale that requiring a complaint to be filed earlier would cause the following result: “[w]orking relation *1428 ships will be injured, if not sundered, and the litigation process will divert attention from the proper fulfillment of job responsibilities.” 449 U.S. at 256 , 101 S.Ct. at 503 (quoting Ricks v. Delaware State College, 605 F.2d 710, 712 (3d Cir.1979)). By reversing our holding in Ricks, the Supreme Court rejected this rationale. While it may ease the EEOC’s workload by limiting the number of filings, today’s holding needlessly introduces another type of disruption into the work place — uncertainty. The Court has effectively given an employee who receives a negative performance evaluation with the understanding that he will be re-evaluated at a later date and at a time when his employer cannot show he should have known that he could be discharged because of that evaluation, the ability to file suit for any negative consequences of that evaluation at any time during his employment relationship, no matter how far in the future those results occur. The Court has removed all restraints on the time during which the employer can he dragged into court under the ADEA for consequences that might ensue from an evaluation given to an employee over the age of forty under conditions similar to those sub judice. In so doing, the Court has not only ignored the Supreme Court’s refusal to recognize a “continuing violation” theory in Evans, Ricks, and Lorance , but it has rendered the ADEA limitations period meaningless in such situations by enabling employees to completely circumvent it. I must, therefore, dissent from today’s decision. . In addition to holding that the evaluation did not trigger the limitations period in this case, the Court holds that the applicable limitations period was 300 days under 29 U.S.C. § 626 (d)(1) and 29 U.S.C. § 633 (b), by virtue of the fact that Pennsylvania provides a state cause of action fbr age discrimination in employment. I concur with the majority’s determination regarding the length of the limitations period. The majority also considered the merits of Colgan’s claim, and reversed summary judgment in favor of Fisher Scientific. Because I would hold that Colgan’s claim is time-barred, I would have affirmed the summary judgment in favor of Fisher Scientific and would not have reached the merits. . These are the factors that I believe to be relevant in this case. Of course, different factors may be implicated in different situations. . If the Court had adopted the standard I propose for determining when the limitations period began to run, it would have had to address Colgan’s contention that the standard should not be applied retroactively in this action on the basis of equitable considerations. I do not believe Colgan can overcome the strong presumption in favor of retroactive application of newly announced rules (see Gruber v. Price Watehouse, 911 F.2d 960 , 965 (3d Cir.1990)), but it would serve no purpose here for me to delineate the reasons why this is so. . The majority contends that it would be "impossible to draw a line at which an evaluation is deemed so negative that a charge must then be filed.” Maj. op. at 1421. Under the "reasonable employee” standard I propose, no precise line need be drawn. In this particular case, the evaluation was so negative that no reasonable employee could have failed to realize that it might have negative consequences. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9481719. Public record. Not legal advice.