Petition for Writ of Certiorari — Kriegesmann v. Barry-Wehmiller Co.

84-5 21 i Office Supreme Court, U.S.

~ | rFiLED

— SEP 17 964

IN THE

SUPREME COURT OF THE UNIT&D STATES

October Term, 1983

EDWIN P. KRIEGESMANN

Petitioner

Vs.

BARRY-WEHMILLER COMPANY

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Francis L. Ruppert

Ruppert and Benjamin

8000 Bonhomme, Suite 201

Clayton, Missouri 63105

(314) 721-4333

Attorney for Petitioner

and Counsel of Record

QUESTIONS PRESENTED

Did the Court of Appeals for the Eighth

Circuit err in barring Petitioner's age

discrimination claim because Petitioner

allegedly filed his initial complaint

with the EEOC more than 180 days after

his termination when material issues of

fact existed as to the equitable

tolling of the 180-day limit including

the failure of Respondent to pest

statutory notices and procedures were

employed by Respondent designed “o

cause Petitioner to waive his rights.

PARTIES TO THE ACTION

Petitioner, Edwin P. Kriegesmann, is an

individual residing in the State of Missouri

previously employed by Respondent, Barry-

Wehmiller Company, which is a Missouri

Corporation.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....... eeocccccccccccces i

LIST OF PARTIES ...... TEETTTEEELELEET LL ii

TABLE OF CONTENTS ..cccccccccccccccsccecccce iii

TABLE OF AUTHORITIES .n.cccccccccccccccesecs iv

OPINIONS BELOW ..cccccccccccccccsccccccce é £2

PUMABOLCELOM ceccccccccccccccesececcene ai 2

STATEMENT OF THE CASE .n.ccccccccccccccccces 2

REASONS FOR GRANTING THE PETITION FOR WRIT

OP CERTIORAR, .ccccccccccsccceccccececsece 6

CONCLUSION ....... WETTTEETETET TTT 10

APPENDIX ..cccccccccccccccccccccesecsecccces 13

TABLE OF AUTHORITIES

CASES: Page

Aronsen v. Crown Zellerbach, 662F.2d 582;

Sar. Gentes L163 B.6e« LASS acocsceces S,. §

Dartt v. Shell Oil Co., 539 F.2d 1256

(lOth Circ. 1976) weccoce TETELECTEL EET 8

Kephart v. Institute of Gas Technology,

SEL Puede hae? Crem GEEs BIO) se eeecesces 10

Nielsen v. Western Electric Co., 603 F.2D 741

[Sen Gals Bete «eeceses SerTTr Te eee Te 7

STATUTES AND RULES:

29 U.S.C. Section 626(d) (1)... ccccccccccccee 2

Federal Rule of Civil Procedure 56 ......... 8

iv.

SS. aS

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

No.

EDWIN P. KRIEGESMANN

Petitioner

Vs.

BARRY-WEHMILLER COMPANY

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Edwin P. Kriegesmann petitions for a Writ

of Certiorari to review the judgment of the

United States Court of Appeals for the Eighth

Circuit in this case...

OPINIONS BELOW

The opinion of the Court of Appeals is not

yet reported. The opinion is reprinted as

Appendix A in the separate appendix attached

to this Petition. The opinion of the District

Court is not yet reported. It is reprinted as

Appendix B in the separate appendix attached

to this Petition.

JURISDICTION

The judgment of the Court of Appeals was

entered on July 19, 1984. The jurisdiction of

this Court is invoked under 28 U.S.C. Section

1254(1).

STATEMENT OF THE CASE

This case involves a summary judgment

entered against Petitioner on his age

discrimination claim brought pursuant to the

Age Discrimination in Employment Act, 29

U.S.C. Section 621, et seq. Th» District

Court granted summary judgment in favor of

Respondent Barry-Wehmiller Company on the

grounds that Kriegesmann had filed his

administrative complaint with the EEOC more

than 180 days after Petitioner's termination

and was thus barred from pursuing his claim

pursuant to 29 U.S.C. Section 626(d). The

Court of Appeals for the Eighth Circuit in a

per curium opinion affirmed the judgment of

the District Court.

| This action was filed on behalf of

Petitioner Kriegesmann based on his complaint

that he had been terminated from his

employment by Respondent Barry-Wehmiller

Company on January 22, 1982. At the time of

his dismissal, Petitioner was 56 years of age.

In his complaint Petitioner alleged that his

age played a substantial part in Barry-

Wehmiller's decision to terminate him.

Petitioner was born July 12, 1925 with his

highest level of education consisting of two

years in high school. See, Plaintiff's

deposition transcript, hereinafter referred to

as “(T.__)," at page 8. Kriegesmann began his

employment with Barry-Wehmiller in April,

1961 and gradually rose through the company

ranks to become its tooling superintendent for

the company's manufacturing facility (T.17).

On January 22, 1982 Petitioner was called

to his supervisor's office where he was

p

|

terminated from his employment allegedly

because the company was eliminating his

position. (T.49-5l).

Approximately one week later, Petitioner

was called to Respondent's personnel office

where he met with the personnel director,

Borchelt, who informed Petitioner that he was

eligible for twenty-one weeks of termination

pay and four weeks of a-*rued vacation pay.

Petitioner was further informed that he could

accept these benefits in weekly installments

and still receive his hospitalization and

insurance benefits provided by Barry-Wehmiller

Company. At that time, he was affirmatively

encouraged by Borchelt to receive the benefits

in weekly installments for a twenty-five-week

period. (T. 55-57).

In addition to affirmatively encouraging

Kriegesmann to take his benefits in weekly

installments, Borchelt promised to assist

Kriegesmann in finding other employment.

Within a few days of Kriegesmann's and

Borchelt's meeting, Borchelt suggested the

name of at least one company to Petitioner as

a prospect for employment. (T.65).

On October 21, 1982, 272 days from the date

of Kriegesmann termination on January 22,

1982, and 97 days from the date of the

expiration of his severance benefits,

Petitioner filed his complaint of age

discrimination with the Equal Employment

Opportunity Commission. After unsuccessful

attempts to conciliate the complaint, Petit-

ioner filed his complaint in the United States

District Court of the Eastern District of

Missouri on July 1l, 1983.

On November 16, 1983, Respondent filed its

Motion for Summary Judgment on the grounds

that Petitioner Kriegesmann had failed to file

his complaint of age discrimination within 180

days trom the date of his termination on

January 22, 1982. Both the District Court and

the Eighth Circuit sustained Respondent Barry-

Wehmiller's position granting summary judgment

on the grounds that Petitioner had not timely

filed his administrative complaint with the

EEOC, This Petition followed seeking relief

from the summary judgment entered against

Petitioner.

REASON FOR GRANTING THE WRIT

ARGUMENT

Rule 17 of this Court provides that a Writ

of Certiorari may be granted where the deci-

sion of the lower court is in conflict with

other decisions of the federal courts of

appeals and where the lower court has

Sanctioned a departure from accepted

procedures requiring a Writ of Certiorari to

issue in order to correct the deficiencies.

Both of these circumstances obtain in the

instant case.

The District Court erroneously granted

summary judgment in favor of Respondent in

spite of material issues of fact being

presented to the Court during its

consideration of the Motion for Summary

Judgment. The particular facts presented in

this case demonstrate that Respondent took

affirmative steps to "iull" Petitioner into

waiting beyond the 180 days from his date o&

termination before he filed his complaint of

age discrimination with the EEOC, Thus,

equitable tolling of the 180-day limitation

contained in 19 U.S.C. Section 626(d) was

demonstrated, or, at the very least, a

material issue of fact was present as to the |

issue of equitable tolling.

Title 29 U.S.C. Section 626(d) provides in

part that:

"No civil action may be commenced by

any individu.l under this section until

the individual has given the secretary

not less than 60 days notice of an intent

to file such action. Such notice shall

be filed:

l. Within 180 days after the

alleged unlawful practice occurred."

It is established in the courts of appeals

that the 180 day limitation is similar to a

Statute of Limitations and is subject to

equitable tolling. See, Nielsen v. Western

Electric Co., 603 F.2d 741 (8th Cir. 1979);

Dartt v. Shell Oil Co., 539 F.2d 1256 (10th

Cir. 1976).

Other courts have noted that summary

judgment under Rule 56 is inappropriate on the

issue of timely filing of EEOC notices in age

discrimination cases where there is a material

issue of fact regarding the issue of equitable

tolling. See , Aronsen v. Crown-Zellerbach,

662 F.2d 584 (9th Cir. 1981); cert denied 103

Dueee anew In Aronsen the court noted that:

"On review of a grant of summary judment, it

Must appear that the facts as alleged could

not reasonably be construed as being equitable

estoppel or tolling." In Aronsen, the facts

were Similar to the instant case where the

court noted that:

"Aronsen offers the inferred fact that

he was inhibited from filing notice with

the ADEA for fear of losing his “terminal

year" severance pay, losing his

eligibility for early retirement, and

losing company aid in finding other work.

Whether this inhibition was reasonable

under the circumstances and whether it

was the result of a plan that would in-

tentionally or foreseeably lull grievance

and delay ADEA filings are factual

questions pertinent to the equitable

estoppel issue that are improper for

Summary judgment treatment. The facts

could support an estoppel argument."

See, Arsonsen, at p.595.

Thus, both the decisions of the District

Court and the Court of Appeals for the Eighth

Circuit are in conflict with Aronsen in that a

material issue of fact was present - to

whether Petitioner's belief that he would lose

his seveiance pay, insurance benefits, and

employment referrals legitimately deterred him

from timely filing his ADEA complaint.

Summary judgment under Rule 56 was

inappropriate under the circumstances.

Finally, this issue of adequate notice was

before the Trial Court and the Court of

Appeals in deciding adversely to Petitioner.

The Court of Appeals indicated that the issue

of the adequacy of notice was not presented at

the Trial Court and therefore could not be a

basis for reversal. However, in granting

Summary judgment pursuant to Rule 56, there

must not be any material issue of fact left to

be resolved. This issue of notice was raised

in the original Motion for Summary Judgment by

Respondent when it claimed that the notice was

posted. However, the issue as to the adequacy

of the notice was never resolved by the Trial

Court and could not be because there was no

evidence in the record pertaining to the

adequacy of such notice. Therefore, the Trial

Court and the Court of Appeals erroneously

granted summary judgment when a material issue

of fact as to the adequacy of Respondent's

notice remains unresolved. See, Kephart v.

Institute of Gas Technology, 581 F.2d 1287

(7th Cir. 1978).

CONCLUSION

For the above stated reasons, it is

respectfully requested that a Writ of

Certiorari issue for the United States Court

of Appeals for the Eighth Circuit.

RUPPERT AND BENJAMIN

“RANCIS L. RUPPERT,

Attorneys for "sn,

8000 Bonhomme, Suite 201

Clayton, Missouri 63105

(314) 721-4333

CERTIFICATE OF SERVICE:

A cepy of the foregoing has been served

upon Mr. Gerald M. Richardson, Attorney for

Respondent, 1800 Equitable Building, 10 South

Broadway, St. Louis, Missouri 63102, by

depositing same in regular U.S. Mails, postage

prepaid, this 24 day of Ypitmy, 1984.

Cn Old ham—

ee ee ee eT ee ee

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 84-1215

Edwin P. Kriegesmann,

Appeal from the

United States

District Court for

the Eastern District

of Missouri.

Appellant,

Ve

** + 2 & &

Barry-Wehmiller Company*

*

Appellee. e

Submitted: June 20, 1984

Filed: July 19, 1984

Before HEANEY, Circuit Judge, HENLEY, Senior

Circuit Judge, and ARNOLD, Circuit Judge

PER CURIAM.

Edwin P. Kriegesmann appeals from the

district court's! grant of summary judgment

and dismissal of his age discrimination action

under the Age Discrimination in Employment Act

lthe Honorable Stephen N. Limbaugh, United

States District Judge for the Eastern and

Western Districts of Missouri.

(ADEA), 29 U.S.C. Sections 621-634, against

the Barry-Wehmiller Company (the employer).

For reversal appellant argues that the

district court erred in holding that his

action was untimely because the employer's

actions did not equitably toll the time for

filing a charge with the Equal Employment

Opportunity Commission (EEOC). For the

reasons discussed below, we affirm.

Appellant began working for the employer in

1961 and was eventually promoted to the

position of tooling superintendent for the

employer's manufacturing facility. On January

22, 1982, appellant's supervisor notified him

that his job was terminated effective

immediately. He was told to clean out his

desk and leave that day. The Personnel

Director met with appellant one week later to

discuss severance pay. Appellant was eligible

for twenty-one weeks of termination pay and

four weeks of accrued vacation pay, which he

could elect to receive in a lump-sum or over a

twenty-five week period. If appellant chose _

to receive the payments in weekly

installments, his health and insurance

benefits would continue for as long as he

received payments. Those benefits would

terminate immediately if he received a lump-

sum payment. Appellant chose to receive the

payments in weekly installments. The

Personnel Dirctor later offered to assist

appellant in finding other employment and

recommended the name of at least one other

company where he could apply. Appellant

received severance and vacation pay through

July 30, 1982. On October 21, 1982, he filed

his age discrimination charge with EEOC, 272

days after his termination on January 22,

1982. Appellant claimed that he was fired

solely on the basis of his age and younger

employees were promoted to take his place.

After unsuccessful attempts to conciliate

appellant's EEOC charge, he filed the present

action in federal district court. The

employer moved for summary judgment on the

ground that appellant's action was untimely

because he had not filed a charge of unlawful

discrimination with the EEOC within 180 days

of the alleged unlawful termination, as

required by 29 U.S.C. Section 626(d).*

Appellant responded that the time for filing

the EEOC charge did not begin to run until the

severance benefits ended because the

employer's actions constituted a continuing

violation. Moreover, appellant argues that

229 U.S.C. Section 626(d) ‘provides in

pertinent part:

No civil action may be commenced by an

individual under this section until 60 days

after a charge alleging unlawful

discrimination has been filed with the

Commission. Such a charge shall be filed--

(1) within 180 days after the alleged

unlawful practice occurred;

Upon receiving such a charge, the

Commission shall promptly notify all

persons named in such charge as prospective

defendants in the action and shall promptly

seek to eliminate any alleged unlawful

Practice by informal methods of

conciliation, conference, and persuasion.

the employer's actions justified equitable

tolling of the 180-day limitations period. In

support of this contention, appellant stated

that the employer would have cut off his

severance benefits in retaliation if he had

filed an age discrimiantion charge with the

EEOC; the employer had misrepresented the

reasons for discharging appellant; the

employer promised him future employment; and

the employer was not prejudiced by the delay

in filing. The district court rejected these

arguments and granted the employer's motion

for summary judgment.

The appellant maintains that the district

court erred as a matter of law in granting

summary judgment. First, appellant alleges

that the employer's failure to post a notice

of his rights under the ADEA violated 29

U.S.C. Section 627 and justified equitable

tolling of the 180-day filing period.

Appellant did not present this theory to the

trial court, and we will not consider it for

the first time on appeal. See 10 C. Wriiht,

A. Miller, & E. Cooper, Federal Practice and

Procedure Section 2716 at 650-54 (1983).

Second, appellant claims that by extending

the severance benefits over a twenty-five week

period and offering to help him find other

employment, the employer lulled him into

sleeping on his rights. As indicated,

appellant argues that if he had filed a

discrimination charge with EEOC, the employer

may have retaliated by cutting his severance

benefits or sabotaging his efforts to find a

new job. Appellant denominates these actions

"constructive misrepresentation." We agree

with the Fourth Circuit that, as a matter of

law,

the attempt to mitigate the harshness of

a decision terminating an employee,

without more, cannot give rise to an

equitable estoppel. The statute of

limitations will not be tolled on the

basis of equitable estoppel unless the

employee's failure to file in timely

fashion is the consequence either of a

deliberate design by the employer or of

actions that the employer should

PEGI AE. mee

unmistakably have understood would cause

the employee to delay filing his charge.

Price v. Litton Business Systems, Inc., 694

F.2d, 965 (4th Cir. 1982) (footnote and

citation omitted). The employer's actions

asserted in the present case -- the provision

of severance benefits ard job referrals --

were not likely to mislead appellant into

sleeping on his rights. The undisputed facts

reveal no deliberate conduct on the part of

the employer to lull appellant into delaying

the filing of his ADEA charge.

Finally, appellant argues that the late

filing of his charge would not prejudice the

employer. The ADEA'ts 180-day filing

requirement is in the nature of a statue of

limitations and subject to equitable tolling.

See Hrzenak v. White Westhinghouse Appliance

Co., 682 F.2d 714, 717 n.6 (8th Cir. 1982).

The absence of prejudice to an opponent does

not support invocation of the doctrine of

equitable tolling. Equitable tolling arises

upon some poistive misconduct by the party

against whom it is asserted. As discussed

above, the undisputed facts reveal no such

misconduct by the employer. Because the

undisputed facts disclosed on the record

reveal that as a matter of law equitable

estoppel could not apply, summary judgment for

the employer was appropriate.

Accordingly, the judgment of the district

court is affirmed.

A true copy.

Attest:

Clerk, U.S. Court of Appeals, Eight Circuit.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

EDWIN P. KRIEGESMANN, )

Plaintiff, .

vs., No. 83-1651 C (5)

BARRY-WEHMILLER compass

Defendant. ;

JUDGMENT

This matter having come before the Court,

the Honorable Stephen N. Limbaugh, District

Judge, presiding, on the defendant's motion

for summary judgment, and said motion having

been granted as set forth in the Memorandum

and Order dated January 12, 1984,

IT IS HEREBY ORDERED AND ADJUDGED that the

plaintiff take nothing by his cause of action,

that the action be dismissed on the merits,

and that the defendant recover of the

plaintiff cost of the action.

Dated this 12th day of January, 1984.

s/ Stephen N. Limbaugh

United States District Judge

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

EDWIN P. KRIEGESMANN, )

)

Plaintiff, )

)

vs., ) No. 83-1651 C (5)

)

BARRY-WEHMILLER COMPANY)

)

)

Defendant.

MEMORANDUM AND ORDER

The matter before the court is the

defendant's motion for summary judgment, which

will be granted. The plaintiff has responded.

The plaintiff is suing his former employer

for discharging him in violation of the Age

Discrimination in Employment Act, 29 USC

Section 621 et seg. The ground for the motion

is that the plaintiff did not file a charge of

discrimination with the Equal Employment

Opportunity Commission within 180 days of the

alleged unlawful employment practice as

required euiee 29 USC Section 626(d).

It is undisputed that the plaintiff was

told his position was terminated on January

22, 1982; that he was told to clean out his

desk and leave that day; that his last day at

work was January 22; that he received

severance and vacation pay through July 30,

1982; and that the filed his charge with EEOC

on October 21, 1982, more than 180 days after

January 22.

The plaintiff argues that his cause of

action accrued on July 30, 1982, when the

severance and vacation pay ended, but this

contention is incorrect. The 180-day period

began running January 22, which is when the

plaintiff was told his job was terminated and

that he should leave and when he stopped

working. The subsequent termination of

severance pay was merely a consequence of a

prior alleged discriminatory act, the

terminationon January 22. Price v. Litton

Business Systems, 694 F.2d 963 (4th‘ Cir.

1982); Lawson v.Burlington Industries, Inc.,

683 F.2d 862 (4th Cir. 1982); cf. Delaware

State College v. Ricks, 440 U.S. 250

(1980) (Title VII case).

The next issue is whether the plaintiff has

justified equitable tolling of the 180-day

limitations period by showing improper conduct

on the part of the defendant. See Price,

Supra.; Neilsen v. Western Electric Co. 603

F.2d 741 (8th Cir. 1979). The plaintiff set

forth four reasons for equitable tolling.

First, the plaintiff's attorneys argue that

the plaintiff would have been subject to a

retalitory cut-off of severance pay if he had

filed a charge. The plaintiff, however, has

adduced no evidence that such retaliation

would have occurred or even that the plaintiff

delayed filing because he feared retaliation.

Furthermore, mere fear of retaliation alone

would be insufficient, as improper conduct on

the part of the defendant must be shown.

Next, the plaintiff argues that the

defendant misrepresented the reasons for the

plaintiff's discharge. The plaintiff has

presented no evidence that the alleged

misrepresentations caused the delay in filing.

Third, the plaintiff claims that the

defendant promised him future employment. As

evidence, the plaintiff refers to Pl. Ex. A, a

letter from the defendant which referred to

the termination as a layoff and which

indicated that the plaintiff might be called

back. The letter, however, is dares August

12, 1982, more than 180 days after January 22.

Any act of the defendant after the 180-day

period ended does not justify tolling, as it

could not have caused the delay in filing.

The plaintiff also stated at his deposition

that he knew he was terminated on January 22,

and that he applied for work elsewhere after

that date. |

Finally, the plaintiff argues that the

defendant was not prejudiced by the delay in

filing. Assuming this is true, the arugment

fails because tolling requires improper

conduct on the part of the defendant and a

Statute of limitations cannot be set aside

merely because the defendant is not

prejudiced.

The plaintiff has not argued that the

defendant concealed his rights under the Age

Discrimination Act. He had seen an EEOC

poster relating to age discrimination which

had been posted, and he threatened ve sue the

defendant (by which he meant suit under the

ADEA) when he was told of his dismissal on

January 22. Dep. at 54 111-12. The Court also

notes that the plaintiff has not even

submitted an affidavit explaining why he

delayed filing.

There being no genuine issue of material

fact,

IT IS HEREBY ORDERED that the defendant's

motion for summary judgment be and is GRANTED.

Dated this 12th day of January, 1984.

s/ Stephen N. Limbaugh

United States District Judge