Opposition Brief — General Telephone Co. v. Addy

Supreme Court brief1988

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S,

No. 87.727 Jan 4 Wet

JOSEPH F. SPANIOL, JR.

=CUERK

In The

Supreme Court of the United States

October Term, 1987

GENERAL TELEPHONE COMPANY OF

CALIFORNIA, LOUISE W. BOWSER,

and RICHARD SAYRE,

Petitioners,

VS.

FLOYD RAY ADDY,

Respondent.

ra’

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

ra’

Ipa L. Campseitit-THomas*

435 W. Mission Blvd., Ste. 102

Pomona, CA 91766

(714) 620-1807

Counsel for Respondent

*Counsel of Record: Ida L. Campbell-Thomas

COCKLE LAW BRIEF PRINTING CoO., (800) 225-6964

or call collect (402) 342-2831

QUESTIONS PRESENTED

The decision rendered by the United States District

Court of Appeals for the Ninth Cireuit which forms the

basis for this Petition for Writ of Certiorari, may not be

as broadly construed as suggested by the questions pre-

sented by Petitioners. Respondent: Floyd Ray Addy,

therefore, respectfully submits that the following questions

more accurately state the questions before the Supreme

Court:

I. Whether or not the date of disciplinary memorandum

which made release from employment contingent on

failure to obtain alternative position with the em-

ployer, was the appropriate date to calculate the be-

ginning of the statute of limitations.

A. Where Notice Of Potential Termination Is Hqui-

vocal And Contradicted By Representations Of

The Employer The Statute Of Limitations Does

Not Begin To Run Until The Termination Date Is

Definite And The Discriminatory Conduct Ceases.

B. Respondent Alleges That Petitioner, General, Did

Deliberately Design And Scheme To Mislead Him

Or To Lull Him Into Not Asserting His Rights

And That Such Conduct By Petitioners Warrants

The Tolling Or Waiver Of the Statute of Limita-

tions.

II. Tolling of the statute of limitations is appropriate

where notice of termination is equivocal, confusing

and contradicted by oral representations of employer,

and supported by employer’s willful and misleading

actions.

A. Tolling Of The Statute Of Limitations Where

Plaintiff Has Been Actively Pursuing Remedies

Does Not Frustrate The Purpose Of The Statute.

Whether The Period Of Time During Which The

EEOC Negotiated The Case Tolled The Statute

Of Limitations.

III. The Ninth Circuit’s holding in the case at bar does

not disregard Ricks and Chardon but, in fact recog-

nizes that each case must be decided on its own merits

and attendant circumstances.

The Bright Line Rule Was Hstablished To Pro-

tect Employers From The Need To Defend

Against Stale Discriminatory Actions.

. Whether The Statute Of Limitations Should Be

Tolled Where Diseriminatory Conduct Is Con-

tinuing?

Whether Summary Judgment Is Appropriate

Where Triable Issues Of Fact Are Present?

1. What is the appropriate time to begin the

statute of limitations where notice is equiv-

oecal and emplovers discriminatory actions

continued until the date of last service.

Whether or not the employer’s actions were

willful, therefore extending the statute of

limitations to three years, is also a jury ques-

tion rendering the case inappropriate for

summary judgment.

QUESTIONS PRESENTED

TABLE OF AUTHORIT’ ES

lil

TABLE OF CONTENTS

REASONS FOR DENYING THE WRIT OF CER-

SSE AR Le Ros eC ee

I. Whether or not the date of disciplinary memor-

IT.

andum which made release from employment

contingent on failure to obtain alternative posi-

tion with the employer, was the appropriate date

to calculate the beginning of the statute of limita-

tions

A. Where notice of potential termination is equiv-

ocal and contradicted by representations of

the employer, the statute of limitations does

not begin to run until the termination date is

definite and the discriminatory conduct ceases

B. Respondent alleges that petitioner, General,

did deliberately design and scheme to mislead

him or to lull him into not asserting his rights

and that such conduet by Petitioners warrants

the tolling or waiver of the statute of limita-

tions

Tolling of the statute of limitations is appropriate

where notice of termination is equivocal, confus-

ing and contradicted by oral representations of

employer, and supported by employer’s willful

and misleading actions

seseee

A. Tolling of the statute of limitations where

plaintiff has been actively pursuing remedies

does not frustrate the purpose of the statute

B. Whether the period of time during which the

EEOC negotiated the case tolled the statute

ON ere ae ea

TABLE OF CONTENTS—Continned

Page

III. The Ninth Circuit’s holding in the case at bar

does not disregard Ricks and Chardon; but in

fact recognizes that each case must be decided on

its own merits and attendant circumstances ......... .

A. The Bright Line Rule was established to pro-

tect employers from the need to defend against

stated discriminatory actions

B. Whether the statute of limitations should be

tolled where discriminatory conduct is con-

SNS © i etal ee ae eee

C. Whether Summary Judgment is appropri-

ate where triable issues of fact are present...

CONCLUSION

What is the appropriate time to begin

the statute of limitations where notice is

equivocal and employer’s discriminatory

actions continued until the date of last

DORTRONS otic cenen eainsicncce oan any :

Whether or not the employer’s actions

were willful, therefore extending the stat-

ute of limitations to three years, is also

a jury question rendering the case inap-

propriate for Summary Judgment —.

Was Respondent dismissed in violation of

ADEA or for legitimate business reasons?

TABLE OF AUTHORITIES

Page

CASES

Amador Val. Investors v. City of Livermore, 43 Cal.

App. 483, 117 Cal. Rptr. 749 (1979) 2 tccsetsnsoe 16

Anderson vy. Liberty Lobby, Inc., 477 U.S. 242, 106

Fe Re | eee eecreai ar a NaC NY koe Come ee 17

Aronson v. Crown Zellerbach, 662 F.2d 584 (9th

Cir. 1981), cert. den. 103 S.Ct. 1183 (1983) 2.00 8,18

Blum v. Witeo Chemical Corp., 829 F.2d 363 (3d

Ce Se) caacennmscees soissdaniiselasitdaed hci gael 21, 22

Bonham v. Dresser Industries, Inc., 569 F.2d 187

SEE Re SPEED) ictcincdcuccabaadece name eek ase ee ee 18

Boyd v. U.S. Postal Service, 752 F.2d 410 (9th Cir.

SO) Sie. LER AERTS ee PI hg ln Dees or s

Callowhill v. Allen-Sherman-Hoff Co., 45 FEP

’

ens San Cae as Se cee ea 10

Chardon v. Fernandez, 454 U.S. 6 (1981) 0. }

Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d

CR, ee ckicce cance ee palidisneaten emeuatos aes 20

Collins v. Manufacturers Hanover Trust Co., 542

Fee, Cea ED | ainsi siittlenslavios 20

Cooper v. Bell, 628 F.2d 1208 (9th Cir. 1980)... &

Cova v Coea Cola Bottling Co., 574 F.2d 958 (8th

Res BID dca eae nian eee Cee 23

Culpepper v. Reynolds Metals Co., 421 F.2d 888 (5th

CORE, EI y cnissgiccaestadinhaceaeiscrec leaatnevcmeaaen nen ann eile 12

Delaware State College v. Ricks, 449 U.S. 250

heeds iarateelaeiatesanliaaioe eaeaaeamieeemaeteasentle maaan passim

Douglas v. Anderson, 656 F.2d 528 (9th Cir. 1981) ......... 23

K.K.0.C. v. Home Insurance Co., 553 F.Supp. 704

(S.D.N.Y. 1982) | uh, 39

TABLE OF AUTHORITIES —Continued

Page

Elliott v. Group Medical and Surgical Service, 714

F.2d 556 (5th Cir. 1985) . dais . . 18

Franci v. Aveo Corp., 5388 F.Supp. 250 (D.Conn.

|) sniiaebiateai eioaiaia 1]

Franks v. Bowman Transportation Co., 424 U.S.

747 (1976) seilelnitetesteien palatal Scat ae aaa ea ae

Guardians Assn. v. Civil Serv. Commission, 633 F.2d

232 (2d Cir. 1980) , . 14

Jackson v. Alean Sheet & Plate, 462 F.Supp. 82

(N.D.N.Y. 1978) eee

Jennings v. IHlome !nsuranece, 635 F.2d 310 (4th

Cir. 1980) . | © 16

Kazanzas v. Walt Disney World Co., 704 F.2d 152%

(11th Cir.), cert.den. 464 U.S. 982 (1983) . 10

Laffey v. Northwest Airlines, 567 F.2d 429 (D.C.Cir.

1976), cert.den, 434 U.S. 1086 (1978) . 16

Laugesen v. Anaconda Co., 510 F.2d 3807 (6th Cir.

117 65) acai seca seis 23

Leite v. Kennecott Copper Corp., 558 F.Supp.

1170 (D.Mass. 1983) . —

Loeb v. Textron, Inc., 600 F.2d 1003 (9th Cir. 1981) 23

Marshall v. Hills Bros., 482 F.Supp. 1520. (N.D.

Cal. 1977) | oe sapaeiieectianids eaten 20

Marshall v. Westinghouse Electrie Corp., 576 F.2d

588 (5th Cir. 1978), reh’gden. 582 F.2d 1042 (5th

Cir. 1978) | sis inlamesiiaaaeniin 20

MeDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973) ie | : 24

Miller v. International Telephone and Telegraph

Corp., 755 F.2d 20 (2d Cir. 1985) 4, 12

Vii

TABLE OF AUTHORITLES—Continued

Page

Monnig v. Kennecott Corp., 603 F.Supp. 1035 (D.

Conn. 1985) a Se

Morelock v. NCR Corp., 586 F.2d 1096 (6th Cir.

1978), cert.den. 441 U.S. 906 (1979) 15

Mullins v. Uniroyal, Inc., 85 F.2d 307 (8th Cir. 1986) 22

Naton v. Bank of California, 649 F.2d 691 (9th

Cir. 1981) 18

Pfister v. Allied Corp., 539 F.Supp. 224 (S.D.N.Y.

1982) 6

Price v. Litton Business Systems, Inc., 694 F.2d

963 (4th Cir. 1982) 5

Reynolds v. CLP Corp., 812 F.2d 671 (11th Cir. 1987). 22

Schulz v. Hickok Mfg. Co., 358 F.Supp. 1208 (D.C.

Ga. 1975) 21

Smith v. World Book-Childeraft, 502 F.Supp. 96

(N.D.11L. 1980) 23

Thurman v. City of Torrington, 595 F.Supp. 1521

(D.Conn. 1984) 15

Trans World Airlines, Ine. v. Thurston, 469 U.S.

111 (1985) Q

United Airlines Ine. v. Evans, 431 U.S. 555 (1971) 16

Verschuuren v. Equitable Life Assur. Soe’y, 554

F.Supp. 1188 (S.D.N.Y. 1983) o, 19

Ward v. Caulk, 650 F.2d 1144 (9th Cir. 1981) 16

Zipes v. Trans World Airlines, Inc., 455 U.S. 385

(1982) 10

Vill

TABLE OF AUTHORITIES—Continued

Page

FEDERAL STATUTES

29 U.S.C. see. 255(a) 6

29 U.S.C. see. 621 et. seq. 11

99 U.S.C. see. 623(f£)(1) aI

29 U.S.C. sec. 626(e) (2 12

The Respondent, Floyd Ray Addy, respectfully re-

quests that this Court deny the petition for writ of cer-

trorari, seeking review of the Ninth Circuit’s opinion in

this ease. The opinion is reported at 914 F.2d 1211 (1967).

STATEMENT OF THE CASE

Respondent, Floyd Ray Addy, was hired by General

Telephone Company of California (General) on or about

April 21, 1972, as a ‘Technical Lllustrator.’’

From April 21, 1972 through May of 1980, Respondent

received satisfactory performance evaluations. On May

7, 1980, Respondent received his first unfavorable evalu-

ation. Upon receipt of same, or shortly thereafter, Re-

spondent advised the EO Department, an internal agency

created by General to impartially investigate allegations

of discrimination, that his supervisors were attempting

to foree his retirement at the age of 65. On July 3, 1980,

Respondent did formally file an internal complaint with

the EO Department. Prior to Respondent filing, the EO

representative informed Petitioners, Bowser and Sayre,

of his complaint of age discrimination and that they were

parties named in the complaint.

On June 17, 1980 and again on June 19, 1980, EKO

representative, Andy Gonzales, met with Respondent and

Petitioners, Bowser and Sayre.

On July 17, 1980, Mr. Gonzales, drafted a memo to

Mr. Thompson, informing her that General’s Personnel

Practices on retirement were out of date.

On December 17, 1980, on Respondent’s birthday, Mr.

Addy was presented with a disciplinary memorandum

from petitioner, dated December 3, 1980, advising him

that his performance was subject to review within 90 days;

and if he failed to improve he would be reclassified to an

available position more commensnrate with his skill level

and if no vacancy exists he may be released.

On February 23, 1981, Respondent received an offer

of ‘‘alternative employment’’ in Petitioner’s Telephone

Equipment Production Center. Such employment was for

substantially lower pay and consisted of assembling and

testing telephone equipment for which respondent had no

knowledge or training. Respondent, subsequently heard

Petitioner, Sayre, discussing another job opening and his

abilities for said position with an unknown third party.

Qn Mareh 16, 1981, Respondent filed age diserimina-

tion charges with the Department of Fair Employment and

Housing (DFEH), and by deferral with the Equal Em-

ployment Opportunities Commission (EEOC).

On March 20, 1981, Respondent was _ informed,

through a disciplinary memorandum, that he had until

April 20, 1981 to obtain another position with the company

or be released.

On April 17, 1981, Respondent placed his tools in

boxes and returned for same on August 20, 1981.

Throughout his grievance and subsequent investiga-

tion by the EO, Respondent was continually assured by the

EKO that he would be given another position with General

and that he should not worry.

On or about April 20, 1981, Respondent was termin-

ated from General, at said time Respondent was the old-

est employee in his Department.

On or about July 21, 1982, after attempts at concilia-

tion failed, DF EH issued him a right to sue letter. On

June 13, 1983, Respondent was notified by EEOC that his

case was being closed and that he could pursue his legal

remedies.

On October 20, 1982, Respondent filed suit in Superior

Court for the County of Los Angeles.

On April 16, 1984, Respondent filed suit in Federal

District Court alleging violations of 29 U.S.C. § 621, et seq.,

for age discrimination and retaliatory discharge.

On October 9, 1984, Petitioners filed a Motion to Dis-

miss and a Motion to Strike. The motion to dismiss was

denied, the court having found the existence of continuing

violations, but granted in part portions of petitioners

request to strike.

On May 15, 1985, pursuant to stipulation, Respondent

amended his Federal Complaint alleging his pendent state

claims.

On September 23, 1985, the District Court, granted

Petitioner a Motion for Summary Judgment, dismissing

respondent’s case, due to lack of subject matter jurisdic-

tion, as the statute of limitations had run. On October 2,

1985, Respondent filed an appeal to the U.S. Court of Ap-

peals for the Ninth Circuit. Said court reversed and re-

manded,

REASONS WHY THE PETITION

SHOULD BE DENIED

I. WHETHER OR NOT THE DATE OF DISCIP-

LINARY MEMORANDUM WHICH MADE RE.-

LEASE FROM EMPLOYMENT CONTINGENT

ON FAILURE TO OBTAIN ALTERNATE

POSITION WITH THE EMPLOYER, WAS

THE APPROPRIATE DATE TO CALCULATE

THE BEGINNING OF STATUTE OF LIMITA-

TIONS.

A. Where notice of potential termination is

equivocal and contradicted by representations

of the employer, the statute of limitations

does not begin to run until the termination

date is definite and the discriminatory con-

duct ceases.

According to Delaware State Colleae v. Ricks, 449

J.S. 250 (1980), the proper date upon which the statute

of limitations begins to run is the date of definite notice

of termination, not the date the termination takes effect.

Subsequent decisions have focused on the date when DEF-

INITE notice of an EXACT date of termination was

known by the employee or should have been known by

an employee reasonably diligent in protecting his rights.

In each case the employer unequivocally informed the em-

ployee of their final decision to terminate the employment

relationship in the notice. Courts have emphasized that

such notice must be clear and unequivocal. Chardon v.

Fernandez, 454 U.S. 6 (1981); Willer wv. International

Telephone and Telegraph Corp., 755 ¥.2d 20, 23 (2d Cir.

1985); Monnig v. Nennecott Corp., 603 F.Supp. 1035 (D.

Conn. 1985).

On his 65th birthday, December 17, 1980, Floyd Ray

Addy was issued a disciplinary memorandum, which in-

formed him of alleged deficiencies in his work and attitude.

The notice ended with the following caveat:

‘‘During the last five months we feel that adequate

guidance and direction has been given, yet no sub-

stantial improvement has been made. In an effort to

give you every opportunity to bring your performance

up to the expected level, we will review your per-

formance in 90 days. If adequate improvement is not

made in the areas of quality, quantity and other work

related requirements, you will be reclassified to an

available position more commensurate with your skill

level. If no vacancy exists, you may be released.’’

(CR 40, TAB CR 40A, subtab 24, Pg. 781).

Addy received a second discipline memorandum, dated

March 20, 1981, stating:

‘*Your work has not shown adequate improvement in

those work related areas as discussed in the Decem-

ber 17 memorandum. You still do not meet the ac-

cepted standards of performance for a Design Artist

II and you have refused an opportunity for employ-

ment in another classification. Therefore, you are

given until April 20, 1981 to find a position within

the company for which you may be qualified. If you

fail to find placement by that time, you will be re-

leased from employment with General Telephone

Company.’’ (CR 35 pp. 155, 156, CR 40A, subtab 25,

pg. 783).

Respondent contends that these disciplinary notices

were not sufficient to be considered final notices but were

made contingent upon his failing to obtain another posi-

tion with the company. The Court in Verschuuren v.

Equitable Life Assurance Society of UWS., 554 F.Supp.

701 (S.D.N.Y., 1983) stated that in order for Delaware

State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.

Ed.2d 431 (1980) to control a notice of termination shall

be considered the controlling date for determining when

plaintiff’s cause of action arose and not at the time his

employment ultimately ceased, only where such notice of

dismissal is clear, and unequivocable. The court held:

‘‘This letter, is, at best, equivocal, it does not assert

that plaintiff will be dismissed; it states only that

he will be dismissed unless another position for him

becomes available, and that every reasonable effort

will be made to find him another position. Accord-

ingly, the letter is of an entirely different character

than the notice in Ricks, as to which the Supreme

Court stated that there was no suggestion that was

in any respect tentative. Ricks, supra, 449 U.S. at

261, 101 S.Ct. at 506. This is true also for the notice

in Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70

L.Ed.2d 6 (1981), a Supreme Court case following

Ricks, in which the court stated that respondents

were notified ... that a final decision had been made

to terminate their appointments.’’ See also, Pfister

v. Allied Corp., 539 F.Supp. 224, 227 (S.D.N.Y. 1982).

Respondent therefore contends that both notices he

received from petitioner General, were contingent upon

another position in existence, and at the very least, final

notice would have occurred on his last day of employment.

B. Respondent alleges that petitioner, General,

did deliberately design and scheme to mislead

him or to lull him into not asserting his

rights and that such conduct by petitioners

warrants the tolling or waiver of the statute

of limitations.

Where a willful violation of ADEA is found, a three-

year limitation period is available under 29 U.S.C. § 255(a).

Respondent maintains that he was actively misled by

his employer and the company Equal Opportunity De-

partment (EO). Respondent contends that the EO was

established by the employer to handle disputes/claims of

employees, including those of discrimination. Respondent

filed a complaint with the company’s EO, in a good faith

attempt to resolve the dispute between he and his em-

ployer. Respondent believed that by filing said complaint

he would be afforded an impartial and equitable forum

which would investigate his grievance and render a fair

and amiable resolution. With said belief, Respondent co-

operated with the EO providing them with documentation

and witnesses who would support his contentions. He was

assured by the EO that his documentation and witnesses

would be kept in confidence. Throughout his grievance/

dispute the EO actively provided him with reassurances

that his claim was being pursued objectively and confi-

dentially. Yet after his termination, by way of formal

discovery, the respondent was supplied documentation that

clearly indicated that the EO was actively working with

Petitioner to terminate him. (CR 404A, p.749-788, Tab 24).

Further, Respondent was never advised by any per-

son who had the authority to terminate him to leave his

employment with the company. His supervisor, Ms. Bow-

ser, on April 15, 1981, did scream at respondent, ‘‘If you

don’t get your stuff packed, [’ll pack it for you.’’, pre-

sumably out of her department, but Ms. Bowser was with-

out authority on her own to terminate him. Her statement

was fully negated by the EQO’s assurances that a position

would be found for him within the company. (CR 40, Tab

CR 40A, subtab 38, p. 848; CR 40, Tab CR 40A, subtab

40, p. 857).

Respondent agrees with petitioners in their reference

to Price v. Litton Business Systems, Inc., 694 F.2d 963 (4th

Cir. 1982) on page 13 of their petition, specifically, ‘‘An

employee’s hope for rehire, transfer, promotion, or a

continuing employment relationship—which is all that

Price asserts here—cannot toll the statute absent some

employer conduct likely to mislead an employee into

> Respondent contends that such

sleeping on his rights.’

conduet is clearly evident in this case. Although Respon-

dent was advised in the March 20th disciplinary memo,

that his position in the drafting department would be fore-

closed, final dismissal from the company was not evident

to Addy up to and even after April 21, 1981 because of

promises made by the company representative that an

alternate task assignment would be made.

While other cases have found unsubstantiated hopes

for continued employment would not avoid a definite ter-

mination date, Respondent distinguishes the ease at bar

from them because of the deliberate and ongoing repre-

sentations of possible alternative employment within the

company which did mislead him into a false understanding

that his employment would be continuing in some capacity.

See Boyd v. U.S. Postal Service, 752 F.2d 410, 414 (9th

Cir. 1985); Aronson v. Crown Zellerbach, 662 F.2d 589,

595 (9th Cir. 1981), cert. den., 459 U.S. 1200 (1983); also

Cooper v. Bell, 628 F.2d 1208, 1214 (9th Cir. 1980).

Further, Respondent maintains that the notices were

deliberately drafted and re-drafted by the company and

the EO officer in order to lull plaintiff into complacency.

The standard for willfulness established by Trans World

Airlines Inc. v. Thurston, 469 U.S. 111 (1985) is that a

violation is willful if the employer either knew or showed

reckless disregard for the matter of whether its conduct

was prohibited by ADEA.

The two notices received by Respondent included vir-

tually the same language: the December notice stated,

‘* |... you may be released if you do not improve’’; the

March notice stated ‘‘ ... you will be released unless you

find employment within the company.’’ After the first no-

tice, one alternate position was offered to Respondent.

He did not accept or refuse this position under the advice

of an WKEOC officer handling his ease. The officer directed

Addy to obtain, in writing, a statement of why he was con-

sidered qualified for the position. The company did not re-

spond to his request but instead assumed that his condition-

al nonacceptance of this job was a refusal. Respondent had

no reason to believe additional positions would not be of-

fered to him in light of the EO officer’s ongoing assurances

that they were still seeking a position commensurate with

his qualifications. Further, Respondent’s evidence shows

that ongoing searches were actually being made on his be-

half by the company. Petitioner does not rebut these facts.

The Ninth Cireuit did not ignore undisputed facts

but found substantial evidence! supporting Respondent’s

contentions that Petitioners conduct and intent were de-

signed to pacify the Respondent into failing to assert his

rights. To grant summary judgment where evidence of

employer misrepresentations exist would allow employers

to give employees vaguely worded termination notices with

contrary oral representations intended to lull potential

plaintiffs into a false sense of security until they no longer

have a remedy thereby thwarting the ADEA statute.

. Three volumes of supporting documentation, approximately

875 pages, atcompanied both plaintiff's appellate brief to the

Ninth Circuit and their response to defendants motion for sum-

mary judgment in the District Court

II. TOLLING OF THE STATUTE OF LIMITA-

TIONS IS APPROPRIATE WHERE NOTICE

OF TERMINATION IS EQUIVOCAL, CON-

FUSING AND CONTRADICTED BY ORAL

REPRESENTATIONS OF EMPLOYER, AND

SUPPORTED BY EMPLOYER’S WILLFUL

AND MISLEADING ACTIONS.

A. Tolling of the statute of limitations where

plaintiff has been actively pursuing remedies

does not frustrate the purpose of the statute.

The purpose of a statute of limitations is to put po-

tential defendants on notice of adverse claims and to pre-

vent plaintiffs from sleeping on their rights, see Delaware

State College v. Ricks, 449 U.S. 250 (1980). By receiving

timely notice, the defendant will be aware of the need to

preserve evidence and witnesses respecting the claims.

‘‘Under certain circumstances tolling of this statute

may become necessary. Holding compliance with the filing

period to be not a jurisdictional prerequisite to filing a

Title VII suit, but a requirement subject to waiver as

well as tolling when equity so requires, we honor the

remedial purpose of the legislation as a whole without

negating the particular purpose of the filing requirement

to give prompt notice to the employer.’’ Zipes v. Trans-

world Airlines, Inc., 455 U.S. 385, 398 (1982). ‘‘It is clear

that the running of the statute of limitations may be tolled

by equitable considerations.’’ Callowhill v. Allen-Sherman-

Hoff Co., 45 FEP Cases 222,225 (3d Cir. 1987) ; Kazanzas

v. Walt Disney World Co., 704 F.2d 1527, 1529 (11th Cir.

cert. den., 464 U.S. 982 (1983).

In order to determine if tolling is acceptable the court

has identified several factors for consideration; whether

the employee had actual or constructive notice of the re-

quirements; employee’s diligence once the requirements

were made known to him; whether the employer was pre-

judiced by the delay.

Tolling the statute of limitations creates no potential

for unfair surprise or unjust delay to the petitioners. The

Court will find and evidence will indicate that the peti-

tioners not only encouraged the respondent to pursue his

claim internally with their EO but also participated in sub-

stantial documentation, responsive and/or settlement ne-

eotiations with both DFEH and EEKOC.

However, equitable tolling will be applied where plain-

tiff is wrongfully induced by the employer to forego his

right to commence suit, the period of deceit will not be

charged against the limitations period. See Monnig v.

Kennecott Corp., 603 F. Supp. 1035 (D.Conn. 1985) which

recognized that equitable tolling applied to plaintiffs

_ since the defendants allegedly gave them reason to believe

they would be retained. ‘‘An employee should not have to

jeopardize his chance of being rehired by filing an age

discrimination charge against his employer, if the em-

ployer encourages the employee to believe he will be re-

hired.’”? Franci v. Avco Corp., 538 F.Supp. 250, 254 (D.

Conn. 1982).

ADEA (29 USCS see. 621 et. seq.) is remedial, hu-

manitarian legislation which should be liberally construed

to effectuate congressional purpose of ending age dis-

crimination in employment, Jackson v. Alcan Sheet & Plate,

462 F.Supp. 82 (N.D.N.Y. 1978).

B. Whether the period of time during which the

EEOC negotiated the case tolled the statute of

limitations under 29 U.S.C. Sec. 626(e) (2).

Where the claim arises from the willful diserimina-

tion of the employer, the limitations period is within three

vears of the discriminatory conduct. This period is tolled

for up to one vear during the time the EEOC attempts to

obtain voluntary compliance with the Act, in no event for

a period in excess of one year, 29 U.S.C. Sec. 626(e) (2),

Leite v. Kennecott Copper Corp., 558 F.Supp. 1170 (D.

Mass. 1983).

Respondent asserts that his statute of limitations, due

to the extensive efforts at conciliation by the EEOC did

toll his limitations period for a year, and therefore, his

complaint is timely. Culpepper v. Reynolds Metals Co.,

421 F.2d 888 (5th Cir. 1970), Miller v. Intern. Tel. & Tel.

Corp., 755 F.2d 20 (2nd Cir. 1985).

III. THE NINTH CIRCUIT’S HOLDING IN THE

CASE AT BAR DOES NOT DISREGARD

RICKS AND CHARDON; BUT, IN FACT REC-

OGNIZES THAT EACH CASE MUST BE DE-

CIDED ON ITS OWN MERITS AND THE AT-

TENDANT CIRCUMSTANCES.

A. The Bright Line Rule was established to pro-

tect employers from the need to defend

against state discriminatory actions.

Respondent does not suggest that courts should re-

quire litigation of dilatory claims. However, where a

plaintiff has been assertively pursuing his rights on a con-

tinuous basis since the beginning of the discriminatory

treatment and where the exact date of dismissal is not

clear due to equivocal language in alleged termination no-

tice, such a bright line does not exist.

Ricks was a simple case where the exact date of term-

ination notice and impact, were uncontroverted. Only the

proper date to begin the statute was in question. No repre-

sentations were made that alternate employment with the

College would be forthcoming. Again, in Chardon, a def-

inite date of termination was established by specific notice

to each affected employee. In the case at bar, such a bright

line is not evident. Notices received by respondent were

equivocal and illusory. And, ongoing assurances were

made to him that alternate employment would be found.

In fact, he was allowed to leave the drafting department

still believing he would be ealled back. Where no bright

line exists, Ricks will not and cannot apply.

B. Whether the statute of limitations should be

tolled where discriminatory conduct is con-

tinuing?

Respondent asserts that petitioner did perpetuate dis-

criminatory policies and practices based on age during and

subsequent to respondent Addy’s termination.

Respondent made repeated complaints to Petitioner’s

KO in 1980 that he was being subjected to discriminatory

treatment due to his age and that the discriminatory treat-

ment was continuing in nature.

Petitioners maintained several age-based diserimina-

tory policies both written and unwritten. One policy in-

volved rating emplovees over 65 on a different scale than

those under 65. Petitioners admitted that they had an un-

written policy to ‘‘earry’’ older employees, despite their

performance until they reached age 65. Petitioners had

forced at least one other employee to retire prior to re-

spondent at age 65 due to poor ratings but had rehired him

when he filed a complaint. It is clear that once an em-

ployee reached 65 and refused to retire, the company would

change the standards they had previously deemed accept-

able and then institute disciplinary procedures against said

employees for not meeting the ‘‘new’’ acceptable stan-

dards. (CR 40, TAB 9, p. 615; CR 40A, TAB 24, p. 758).

Further, Respondent submitted on August 12, 1980

documentation including a notice of intent to work beyond

the age of 65 to his employer (at the direction of the EO

officer) (CR 40 TAB CR 40A, subtab 23, p. 743). This

written ‘‘diseriminatory practice’? (CR 40, TAB CR 40A,

subtab 23, p. 744 and 745) prompted petitioner’s trans-

mittal slip, dated 8-14, regarding petitioners request to

continue working which was directed (pursuant to written

company policy) to respondent’s superviser and the vice

president of the company. The aforementioned indicates a

written policy of age discrimination still in effect on Aug-

ust 14, 1980, six months after another employee had filed a

complaint regarding this policy. Therefore, petitioners

maintained written and unwritten discriminatory policies

despite their being made aware of the illegality of such

practice by an earlier complaint filed by another employee

which was resolved by DFEH.

Respondent further alleges that this policy of discrim-

ination and foreed retirement or subsequent termination

did continue in existence after his termination until at

least December 1982, when petitioner ‘‘constructively dis-

charged’’ another employee.

The Court in E.E.0.C. v. Home Insurance Co., 553

F.Supp. 704 (S.D.N.Y. 1982), citing Guardians Assn. v.

Civil Serv. Commission, 633 F.2d 232 (2d Cir. 1980) ; More-

lock v. NCR Corp., 586 F.2d 1096 (6th Cir. 1978), cert. den.

441 U.S. 906 (1979) held that ‘‘It is well established that

an unlawful discriminatory policy maintained by an em-

ployer constitutes a continuing violation for the purposes

of limitations, in the sense of a discriminatory condition of

employment as the term is used in age discrimination—a

suit against maintenance of the mandatory retirement

policy would be timely so long as the provision was main-

tained at least into the applicable limitations period.’’

The Court in Thurman v. City of Torrington, 595

F.Supp. 1521 (D.Conn. 1984), held that the plaintiff must

typically point to facts outside his own ease to support his

allegation of a policy on the part of defendent. Respon-

dent refers the Court to another employee, Evelyn MeCon-

nell, age 63, who complained of age discrimination and

sexual harrassment by petitioners and filed a complaint

with DFEH in July 1982 clearly indicating that petitioners

were still implementing similar discriminatory practices

and policies after the termination of respondent (connected

case below).

The court in Home Insurance Co., supra, held that

‘*Where employer maintained discriminatory mandatory

retirement provisions timeliness of claim asserting unlaw-

ful termination thereunder was to be determined with

reference to the earlier of either the last day of employ-

iment or the date which the employer eliminated the unlaw-

ful provisions, because employer maintained the alleged

unlawful policy throughout the termination being sued

upon, relevant dates for each employee was his date of

termination.’’

Further, the court notes that for statute of limitations

purposes, ‘‘We must assume that the lowered retirement

age, continued unequivocally in effect until some time after

the employees were terminated, continued in effect indef-

initely regardless of the knowledge which hindsight affords

us of the subsequent changes.’

Appellant asserts that the statute of limitations sur-

rounding continual violations begins to run at the end of

the continual period or is tolled during the pendency of the

violations. United Airline Inc. v. Evans, 431 U.S. 555

(1971); Franks v. Bowman Transportation Co., 424 U.S.

747 (1976); Ward v. Caulk, 650 F.2d 1144 (9th Cir. 1981) ;

Amador Val. Investors v. City of Livermore, 43 Cal. App.

3d 483, 117 Cal. Rptr. 749 (1974) ; Laffey v. Northwest Atr-

lines, 567 F.2d 429 (D.C. Cir. 1976) cert. den. 434 U.S. 1086

(1978).

Therefore, the statute of limitations would be tolled

until petitioners were in compliance with the laws on dis-

crimination due to age not only on paper but in their ac-

tual application. Respondent contends that the statute

should be tolled at least until December 1982 upon the

eonstuctive discharge of another employee who worked

for the saine petitioners, experienced similar discrimina-

tory practices, or at the very least the effective date of his

termination. Jennings v. Home Insurance, 635 F.2d 310

(4th Cir. 1980).

C. Whether the Summary Judgment is appro-

priate where triable issues of fact are present.

Respondent does not deny the importance of summary

judgment as a means of handling cases where the evidence

is undisputed and so one-sided that one party must pre-

vail as a matter of law. However, where genuine issues

of material fact exist, summary judgment is not an ap-

propriate remedy. Petitioners assert that a clear and

convincing standard of proof should be evident in order

to withstand summary judgment citing, Anderson v.

Liberty Lobby, Inc., 91 L.Ed.2d 202, 216 (1986). The Court

went further to state:

It by no means authorizes trial on affidavits. Credi-

bility determinations, the weighing of the evidence,

and the drawing of legitimate inferences from the

facts are jury functions, not those of a judge... .

Respondent here argues that in addition to substan-

tial evidence that petitioners intentionally plotted to dis-

charge Addy and misled him into believing he was only

being reassigned, the inferences from the documentation

regarding the state of mind of the parties—both the in-

tent of petitioners and the reasonable understanding of

these representations by respondent—are jury questions,

not suitable for disposition by summary judgment. The

Ninth Circuit decision in this ease does not block the avail-

ability of summary judgment in all eases but, rather, indi-

cates that where substantial questions of fact as to when

a reasonable man should know he is terminated becomes a

jury issue and summary judgment is inappropriate.

Among the disputed facts are the date of definite termina-

tion, the willful intent of the employer, the bad faith con-

spiring of the company with their independent EKO officers,

the quality of the employee’s work, and whether the em-

ployee was dismissed due to age or for legitimate business

reasons,

1. What is the appropriate time to begin

the statute of limitations where notice is

equivocal and employer’s discriminatory

actions continued until the date of last

service?

There is ongoing controversy over how extensive the

application of Ricks, a Title VII case, to ADEA claims

should be. ADEA is considered a remedial statute which

should be liberally construed. Bonham v. Dresser Indus-

tries, Inc., 569 F.2d 187 (3d Cir. 1977) cert. den. 439 U.S.

821 (1978). The Bonham court explained, ‘‘Circumstances

may exist where, notwithstanding plaintiff’s failure to

comply with the letter of the law, the purposes of the sta-

tutory requirement—providing the Secretary of Labor

with an opportunity to conciliate while the complaint is

fresh and giving early notice to the employer of. possible

litigation have been substantially served. In Nation v.

Bank of California, 649 F.2d 691 (9th Cir. 1981), the court

noted that the rationales of Ricks and Bonham v. Dresser

may produce different results when the employee’s last

day of serviee is different from the date on which the

employer gives unequivocal notice of termination. The

Court in Elliott ». Group Medical and Surgical Service,

714 F.2d 556 (5th Cir. 1983) specifically found the ques-

tion of when the employment relationship ceased, where

it is not clearly established, to be a jury issue. See also

Aronson v. Crown Zellerbach, 662 F.2d 584 (9th Cir. 1981),

cert. den. 103 S.Ct. 1183 (1983).

In the instant case, no clearly defined date of termina-

tion is present. Only an equivocal disciplinary memoran-

dum was presented to respondent on December 17, 1980.

A second, similarly worded memorandum was given to

Addy on March 20, 1987. Respondent had no reason to

believe that he was dismissed because of ongoing and

uncontroverted statements by the EO that another suit-

able position would be found for him within the company.

Petitioner has not produced any evidence that they did

not make these ongoing representations to the plaintiff

and were continuing to do so until his last day of work.

Further, where ongoing violations are committed by

an employer, determining the correct date for starting the

statute of limitations, has been found to be a jury question.

Cases where (like Ricks) notice is deemed to be the date

of notice include a definite date of termination. Cf. Ver-

shuuren v. Equitable Life Assur. Soc’y, 554 F.Supp. 1188

(SDNY 1983) where plaintiff was given notice that he

would be terminated on September 1 unless another posi-

tion were found for him. The court distinguished this

from Ricks stating the issues arising in the context of a

statute of limitations question differ from those in the con-

text of a pleading question; further, if Ricks did apply,

the June 8 notice was not a final notice when it held out

the possibility of continued employment.

In the case at bar, petitioners had gone to even

greater lengths to make the respondent believe that an

acceptable position would be found by continuing to make

these representations repeatedly and documents, produced

through discovery, show that representations were in fact

made to respondent that the EO had and would continue

to seek alternate employment for him and for him not to

worry. (CR 40, TAB 4, p. 531-535; CR 40, TAB 9, p. 599)

Petitioners would have the court believe that respon-

dent did not meet the requirements of his position. Re-

spondent can show that he worked up to required em-

ployment standards and even attempted to respond to the

new demands made on him during his last year. By peti-

tioner’s own documentation, respondent’s attitude im-

proved during the period of time he was under scrutiny

(CR 40, p.608-683) ; plaintiff has records which prove he

was working at the same level as other employees and, in-

deed, exceeding the quality of their work. Respondent

has received multiple commendations for the work he has

accomplished and has produced witnesses whose deposi-

tions directly challenge Petitioners claims that his work

was unacceptable. (CR 40A, TAB 27, p. 728,882; CR 40A,

TAB 29, p. 803-811.)

2. Whether or not the employer’s actions

were willful, therefore extending the stat-

ute of limitations to three years, is also

a jury question rendering the case inap-

propriate for Summary Judgment.

‘*By pointing to evidence which calls into question the

defendant’s intent, the plaintiff raises an issue of material

facet which, if genuine, is sufficient to preelude summary

judement.’’ Chipollini v. Spencer Gifts, Inc., 814 F.2d

398,899 (3d Cir. 1987).

The court in Marshall v. Westinghouse Electric Corp.,

576 F.2d 588 (5th Cir. 1978), reh’g den. 582 F.2d 1042 (5th

Cir. 1978) held that fact finding is necessary on the ques-

tion of willfulness, therefore, summary judgment is un-

available. See also, Collins v. Manufacturers Hanover

Trust Co., 542 F.Supp. 663 (S.D.N.Y. 1982); Marshall v.

Hills Bros., 432 F.Supp. 1320 (N.D. Cal. 1977).

1 nema

3. Was Respondent dismissed in violation of

ADEA or for legitimate business reasons?

Petitioner must be able to show that respondent was

dismissed for a legitimate business necessity such as quan-

tity or quality of production requirements. 29 U.S.C. see.

623(f) (1).

Respondent here has shown that discriminatory treat-

ment based on age by petitioners was an integral part of

his dismissal. Respondent consistently received fair to

good performance reviews during his tenure with petition-

er until the year he turned 65. Around the same time, he

had informed petitioners that he would be continuing his

employment past the age of 65. Addy was then submitted

to a new ‘‘trial period’’ during which he was placed under

strict scrutiny. Such scrutiny was part of petitioners age-

based policy to alter the acceptable performance rating

for employees after 65 to above fair while prior to 65 an

acceptable rating is fair or below, (CR 40, TAB 9 pp. 61-63,

606-624). Respondent was subjected to this stricter level of

review than other, younger members of his department—

a clear violation of ADEA, Blum v. Witco Chemical Corp.,

829 F.2d 363 (3d Cir. 1987).

Additionally, information garnered after the decision

to dismiss an employee are strongly suspect. Perform-

ance appraisals setting forth in writing a supervisor’s

evaluation of the discharged employee, based on definite

and valid criteria, have been held important for purposes

of considering questions of good cause for dismissal, but

appraisals written after the decision to fire has been made

have been discounted as self-serving. Schulz v. Hickok Mfg.

Co., 358 F.Supp. 1208 (D.C. Ga. 1973). Petitioners should

have known of any poor work performance or other prob-

lems with respondent from previous months, if indeed his

performance was poor. A new probationary period based

on age should not have been necessary unless the decision

to dismiss was made earlier and documentation of same

was necessary before the petitioner could attempt to dis-

. miss for cause. (CR 40 pp. 614 & 616).

Further, petitioners have testified that they had been

carrying respondent for a period of time, waiting until

he reached the age of 65 and would be retired. If this is

true, then petitioners, by their own admission, assert that

age was the determining factor here and not the level of

the performance. (CR 40, TAB 9, p.615; CR 40A, TAB

24, p. 758).

Increased scrutiny itself was strictly age-based. If

an additional period were acceptable, the adequacy of

performance should have been based on the same level of

scrutiny as that of all other employees. A policy where

an increased level of scrutiny which is strictly instituted

based on the age of the party must be immediately suspect.

Blum, supra; see also Reynolds v. CLP Corp., 812 F.2d 671

(llth Cir. 1987).

A mixed motivation case arises when either the em-

ployer concedes that age was a discernible, though not a

motivating factor or a court finds the presence of such a

factor. The employer bears the burden of demonstrating

by a preponderance of the evidence that the same adverse

employment decision would have been made even without

age being considered. Mullins v. Uniroyal, Inc., 805 F.2d

307 (8th Cir. 1986). General claims that this decision was

inevitable because of performance not age but at the same

time states that they had been carrying plaintiff for several

years with unsatisfactory work production, despite ade-

quate performance evaluations, until such time as respon-

dent approached his 65th birthday and expressed his desire

to continue to work. At that time, he was suddenly under

extreme scrutiny. Defendent’s statement that other older

employees have been retained is irrelevant. Ongoing em-

ployment of other older employees does not effectively re-

but the presumption of age as a determining factor in dis-

missal. Smith v. World Book-Childcraft, 502 F.Supp. 96

(N.D.Ill. 1980); Loeb v. Textron, Inc., 600 F.2d 1003, 1014

(1st Cir. 1979); Douglas v. Anderson, 656 F.2d 528, (9th

Cir. 1981) in dicta. Indeed here it should not eliminate the

question as to petitioners intentional violations, especially

since, in the Graphic Arts Dept. where respondent was em-

ployed, only the younger members of the staff remain. The

two oldest employees, both covered by the ADEA, were

dismissed by their supervisor, petitioner Bowser. Petition-

ers would lead the court to believe that Ms. Bowser was

approaching retirement herself by describing her to be of

‘mature years’’ while she in fact is several vears younger

than respondent.

Some circuits require only that age be a determining

factor to show a prima facie case, shifting the burden, to

defendent to show other cause for dismissal. Laugesen v.

Anaconda Co., 510 F.2d 307 (6th Cir. 1975), Cova v. Coca-

Cola Bottling Co., 574 F.2d 958, 959 (8th Cir. 1978). Others

require that it be proven by preponderence of evidence be-

fore the burden shifts. Loeb v. Textron, dnc., 600 F.2d

1003, 1011-12 (1st Cir. 1979). Either way, in this case, the

burden was shifted to defendent to prove age was not the

determining factor and that other legitimate business rea-

sons were the reason for termination. If GTE could show

a legitimate business reason for his termination, then the

burden shifts under McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802 (1973) to the plaintiff to show that de-

fendent employers reasons were merely pretextual.

Respondents assert that petitioners have not met their

burden to show dismissal was not pretextual and willfully

executed as part of an ongoing policy of age discrimina-

tion.

CONCLUSION

The Ninth Cireuit Court of Appeal was required to

render a well-reasoned decision on the various issues be-

fore it at the time of respondent’s appeal. It did so.

Based on the foregoing, Respondent respectfully re-

guests that the petition for writ of certiorari be denied.

Dated: January 4, 1988

Respectfully submitted,

Ida L. Campbeil-Thomas

Counsel for Respondent

~ fyi

= Be

‘

go |

: ‘

: :

; \

\ \ ‘ 3 |

‘ 3 } + ae : } : aie! ;

\ . . . ; : :

. 3 3 : ; , Res

ry ; : ES . : |

- . “e . mh i » : : ‘

i pare My ct : ‘

{

een ole

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.