Opposition Brief — Unisys Corp. v. Anderson

<—“\ Supreme Court, U.S.

ot) 9D - 5 FILED

5. 94-1363

AUC-26 1995

In The CLERK a

Suprene Court of the United States

$

October Term, 1994

UNISYS CORPORATION, doing business as REMINGTON

RAND UNIVAC, doing business as SPERRY UNIVAC, doing

business as SPERRY, doing business as UNISYS, doing business

as PARAMAX SYSTEMS,

Petitioner,

VS.

RICHARD ANDERSON; ROBERT EGGAN; CARL

ENGLEHORN; NORRIS NIELSEN; TIMOTHY WANDERSEE;

DONALD WOODS; PETER LOWRY,

Respondents.

On Petition for Writ of Certiorari to the United States Court of

Appeals for the Eighth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

ve DOUGLAS P. KEMPF

ie Counsel of Record

KEMPF & KEMPF

Attorneys for Respondents

One Paramount Plaza, Suite 260

7801 East Bush Lake Road

Bloomington, Minnesota 55439

(612) 844-9939

(800) 3 APPEAL * (800) 5 APPEAL * (800) BRIEF 21

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QUESTIONS PRESENTED

Petitioner has sought a writ of certiorari to review the

decision of the Eighth Circuit Court of Appeals reversing the

United States District Court for the District of Minnesota’s entry

of summary judgment for Petitioner.

Petitioner’s phrasing of the two questions Petitioner desires

to present is argumentative and inaccurate. Petitioner’s two stated

questions also contain a subsidiary but very significant third

question.

Aclear rendition of Petitioner’s first question is:

1. Do ambiguous and_ misleading’ written

representations by the Equal Opportunity Employment

Agency (“EEOC”) concerning the administrative charge-

filing period of the Age Discrimination in Employment Act

(“ADEA”) to a pro se claimant equitable toll the

administrative charge-filing period of the ADEA?

Aclear rendition of Petitioner’s second question is:

2. Is itan unconstitutional usurpation of federal power

to allow ambiguous and misleading written representations

by a State agency, the Minnesota Department of Human

Rights (““MDHR”), on the federal ADEA administrative

charge-filing period to result in the tolling of that charge-

filing period, if the representations were made by the MDHR

while acting pursuant to its role under Federal Law as an

agent for the EEOC, when similar ambiguous and

misleading written representations made directly by the

EEOC would result in tolling?

ee

Petitioner raises a third question, in the apparent hope that if

review is granted, and Petitioner does obtain a reversal on one or

both of the two prior questions, Respondents’ claims might be

entirely dismissed by the Court. This third question is:

3. Did the district court properly reach its summary

judgment decision holding as a matter of law that Petitioner

complied with the ADEA notice provisions?

Respondents have filed an associated cross-petition for a writ

of certiorari.

iii

TABLE OF CONTENTS

Page

ee kw a hae es oe0eee 58

ei od 6 6c 6b a gee shes 09:00 %0) ead iii

Table of Citations .......... Peak ok ae oe v

ee a sap 65 oe Wn Ween sae 4001 l

statement Of Jurisdiction ..........cccccccccccccces 3

Relevant Statutes, Regulations and RulesInvolved ..... 3

ae 7

A ee 9

A. Involuntary Terminations ................... 9

B. Administrative Proceedings ................. 4

C. CommencementoftheAction ................ 1]

D. Motion for Class Certification; Timeliness Issue

Raised by Petitioner for the First Time; No

Evidence of Posting at Respondent Anderson’s

iad bo 6 saa ea 44-4 dre ek 0-008 wwe 6: 12

E. Motion to Dismiss the Non-Anderson/Nielsen

OTe CoCr EE ee Te Tae 13

gts

Fk

Iv

Contents

Page

Summary Judgment Motions on the ADEA Posting

PPT EPO T TET TERT TICUET TOE TET CCE Coe 14

Reasons for Denying the Writ .........csceccesecess 16

If.

ITT.

The Eighth Circuit’s decision, that ambiguous and

misleading written representations by the EEOC to

a pro se claimant toll the ADEA administrative

charge filing period, is consistent and not in

conflict with the decisions of the other circuits;

there is no compelling need to review this issue. . . 16

Applying the same equitable tolling principles that

apply to the EEOC to state human rights agencies

that are legally authorized agents of the EEOC does

not raise the constitutional issue of state usurpation

ep Seer rrr re Tee Terre r 18

The district court’s ruling — (1) allowing Petitioner

to withdraw its prior admission that Respondent

Anderson’s charge was timely; (2) granting

Petitioner’s request to make a second summary

judgment motion on Petitioner’s compliance with

ADEA notice provisions after the dispositive

motion deadline had expired; (3) permitting

Petitioner to use surprise evidence to support its

summary judgment motion, that had not been

disclosed to Respondents prior to the expiration of

the discovery deadline; (4) ordering Respondents

to respond in 5 days to Petitioner’s summary

judgment motion instead of the 19 days as required

under the local practice rules; (5) failing to

Vv

Contents

Page

schedule a hearing on the second summary

judgment motion; (6) refusing to reopen discovery

in light of Petitioner’s surprise evidence; (7)

issuing a summary judgment order based on the

surprise evidence and despite previously

submitted, contradictory evidence that had not

been discredited — so drastically and seriously

departed from the accepted and usual course of

judicial procedure: and the Courts of Appeals’

failure to rule on this departure: call for the exercise

of the Court’s power of supervision. ........... 20

OI os. é .ceiaaicand wees eee ee 23

TABLE OF CITATIONS

Cases Cited:

AgriStor Leasing v. Farrow, 826 F.2d 732 (8th Cir. 1987) . 22

Camfield Tires, Inc. v. Michelin Tire Company, 719 F.2d

CPOE Tee Gas SEES 66s wnt weeus sen ceca de ewerens 21

Conaway v. Control Data Corp., 955 F.2d 358 (Sth Cir.

Oe) kc ukeunececss eee eee eee 17,18

DeBrunner v. Midway Equipment Co., 803 F.2d 950 (8th

Cat: SO? kanancad teteeeenerean beeeere reese 21

Kloos v. Carter-Day Co., 799 F.2d 397 (8th Cir. 1986) ... 10

vi

Contents

Page

Kocian v. Getty Refining & Marketing Co., 707 F.2d 748

+e % Br eer es re rei se 18

Long v. Frank, 22 F.3d 54 (2d Cir. 1994) .............. 17

Martinez v. Orr, 738 F.2d 1107 (10th Cir. 1984) ........ 17

Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S. Ct. 2066,

CBE PLETED vc 6 wae haw haeeeseueaneren 19

Scheerer v. Rose State College, 950 F.2d 661 (10th Cir.

SSE) 0404400844408 0600s a eee 17

Van T. Junkins and Associates, Inc., v. U.S. Industries, Inc.,

re ye i eh Le | aie ree 21

Statutes Cited:

Re Ue WEED 6-wnedbiedkaciacesanrn yen 3

FOU Bh BSUOURE 60.066 b064N bis bewe ea ek ar 3

FOU ters ME i 0-00.60 4aSaae nod cause ies tere 3,11

POU BA BGS 6 00 000000000060045008 se eae eee 4,21

29 USA. BGS «6 0 on 60408 05:005820 608 a eee 4,19

DGinm. Stat. SSRS TS OMG cons cudsckcccnweecstesns 6

Deion. Beet. S SSS. GOES. oc écaunOucws sub eeseas 6,11

vil

Contents

Rules Cited:

Federal Rule of Civ. Procedure3 ....... cece ccccese:

Federal Rule of Civ. Procedure 4(m) .................

Federal Rule of Civ. Procedure S6(c) .................

Local Rule of the United States District Court for the

Sere Ge DN. FLD va kk ccasnescacewevesen

Local Rule of the United States District Court for the

District of Minnesota, 7.1(b) .................006.

Other Authorities Cited:

pee eer ry rr errr rer ree

poe RS er Terry errr er Perry

APPENDIX

Appendix A — Pretrial Schedule of the United States

District Court, District of Minnesota Fourth Division

ef gk. - PRPPeerrerrirrirrerrerer

Appendix B — Memorandum and Order of the United

States District Court, District of Minnesota Fourth

Division Filed March 25, 1993 .......c.cccccce.

Appendix C — Order of the United States District Court,

District of Minnesota Fourth Division Filed December

Page

4a

]

No. 94-1363

In The

Supreme Court of the United States

Sa

October Term, 1994

JNISYS CORPORATION, doing business as REMINGTON

RAND UNIVAC, doing business as SPERRY UNIVAC, doing

business as SPERRY, doing business as UNISYS, doing busi-

ness as PARAMAX SYSTEMS,

Petitioner,

vs.

RICHARD ANDERSON; ROBERT EGGAN; CARL ENGLE-

HORN; NORRIS NIELSEN; TIMOTHY WANDERSEE;

DONALD WOODS; PETER LOWRY,

Respondents.

On Petition for Writ of Certiorari to the United States Court of

Appeals for the Eighth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

OPINIONS BELOW

The opinion on which Petitioner seeks review is the Eighth

Circuit Court of Appeals’ decision reversing the district court’s

December 28, 1993 summary judgment order and affirming the

2

district court’s October 20, 1993, order. The decision was issued

on February 14, 1995, is reported at 47 F.3d 302 and reprinted in

the Appendix to Petitioner’s Writ at A, 5-22. The Eighth Circuit

on April 19, 1995 denied the non-Anderson/Nielsen

Respondents’ motion for rehearing. The April 19, 1995 order is

unreported and reprinted in the Appendix (“A”) to Petitioner’s

Writ atA, 1-4.

The opinion of the district court holding that there was

evidence that Petitioner failed to comply with ADEA notice

provisions and allowing the joinder of additional Plaintiffs in this

action was issued on March 25, 1993. It is unreported and

reprinted in the Appendix (“B”) to Respondents’ Brief in

Opposition to the Petition for a Writ of Certiorari at B, 4a-21a.

The opinion of the district court granting Petitioner’s motion to

dismiss the federal claims of the non-Anderson/Nielsen

Respondents and the state claims of all of the Respondents was

issued on October 20, 1993. It is unreported and reprinted in the

Appendix to Petitioner’s Writ at A, 47-60. The opinion of the

district court denying Respondents’ motion to reconsider the

dismissal of the non-Anderson/Nielsen Respondents was issued

on November 24, 1993. It is unreported and reprinted in the

Appendix (“A”) to Respondents’ Writ at A, la-2a. The district

court’s denial of Petitioner’s first motion for summary judgment

is attached in the Appendix to Respondents’ Brief in Opposition

to a Writ of Certiorari at C, 22a-23a. The district court’s opinion

granting Petitioner’s second motion for summary judgment and

holding that there was no evidence that Petitioner had failed to

comply with ADEA notice provisions was issued on December

28, 1993. It is unreported and reprinted in the Appendix to

Petitioner’s Writ at A, 23-46.

The pretrial schedule order of the district court establishing

that all discovery shall terminate on October 1, 1993, that all

dispositive motions shall be filed and the hearing thereon

3

completed prior to December 1, 1993, and that all dispositive

motions shall be scheduled, filed and served in compliance with

Local Rule 7.1(b), was issued on September 14, 1992. It is

reprinted in the Appendix to Respondents’ Brief in Opposition to

the Petition for a Writ atA, 1la-3a.

STATEMENT OF JURISDICTION

The jurisdiction of this Court is appropriate under 28 U.S.C.

§ 1254(1). Under 28 U.S.C. § 2101(c), the writ must be applied

for within ninety days after the entry of judgment or decree. The

90 day period commences from the date of a denial of a petition

for rehearing. The non-Anderson/Nielsen Respondents’ petition

for a rehearing was denied on April 19, 1995. The 90 day period

expired on July 19, 1995.

RELEVANT STATUTES, REGULATIONS

AND RULES INVOLVED

29 U.S.C. § 626(d):

No civil action may be commenced by an

individual under this section until 60 days

after a charge of discrimination has been filed

with the Equal Employment Opportunity

Commission. Such a charge shall be filed —

* ” *

(2) in a case to which section 633(b)

of this title applies, within 300 days

after the alleged unlawful practice

occurred, or within 30 days after

receipt by the individual of notice of

termination of proceedings under

State law, whichever is earlier.

|

29 U.S.C. § 627:

Every employer, employment agency, and

labor organization shall post and keep posted

in conspicuous places upon its premises a

notice to be prepared or approved by the

Secretary setting forth information as the

Secretary deems appropriate to effectuate the

purposes of this Act.

29 U.S.C. § 633:

(a) Nothing in this Act shall effect the

jurisdiction of any agency of any State

performing like functions with regard to

discriminatory employment practices on

account of age except that upon

commencement of action under this Act such

action shall supersede any State action.

(b) In the case of an alleged unlawful practice

occurring in a State which has a law

prohibiting discrimination in employment

because of age and establishing or

authorizing a State authority to grant and seek

relief from such discriminatory practice, no

suit may be brought under section 626 of this

title before the expiration of sixty days after

proceedings have been commenced under the

State law, unless such proceedings have been

earlier terminated: Provided, that such sixty

day period shall be extended to one hundred

and twenty days during the first year after the

effective date of such State law. If any

requirement for the commencement of such

5

proceedings is imposed by a State authority

other than a requirement of the filing of a

written and signed statement of the facts upon

which the proceeding is based, the

proceeding shall be deemed to have been

commenced for the purposes of this

subjection at the time such statement is sent

by registered mail to the appropriate State

authority.

29C.F.R. § 1626.9:

(a) The Commission may refer all charges to

any appropriate State agency and will

encourage State agencies to refer charges to

the Commission in order to assure that the

prerequisites for private law suit, as set out in

section 14(b) of the Act, are met. Charges so

referred shall be deemed to have been filed

with the Commission in accordance with the

specifications contained in sec. 1626.7(b).

7s *

(b) States to which all ADEA charges may be

referred: * * * Minnesota * * *.

29 C.F.R. § 1627.10:

Every employer, employment agency, and

labor organization which has an obligation

under the Age Discrimination in Employment

Act of 1967 shall post and keep posted in

conspicuous places upon its premises the

notice pertaining to the applicability of the

Act prescribed by the Commission or its

6

authorized representative. Such a notice must

be posted in prominent and accessible places

where it can readily be observed by

employees, applicants for employment and

union members.

Minn. Stat. § 363.03 subd. 1:

* * * itis unfair employment practice. . . For

an employer, because of * * * age,

(a) to refuse to hire or to maintain a

system of employment’ which

unreasonably excludes a _ person

seeking employment; or

(b) to discharge an employee; or

(c) to discriminate against a person

with respect to hiring, tenure,

compensation, terms, upgrading,

conditions, facilities, or privileges of

employment.

Minn. Stat. § 363.06 subd. 3:

A claim of an unfair discriminatory practice

must be brought as a civil action * * * or filed

in acharge with the commissioner within one

year after the occurrence of the practice. * * *

Fed. R. Civ. P. Rule 56(c):

The motion shall be served at least 10 days

before the time fixed for a hearing.

7

Local Rules of the United States District Court for the

District of Minnesota L.R. 7.1:

(b) Dispositive Motions:

(1) No motion shall be heard by a

district judge unless the moving party

delivers one copy of the following

documents to opposing counsel * * *

at least 28 days prior to the hearing:

“_* *

(D) Affidavits and Exhibits

(E) Memorandum of Law

(2) Any party responding to the

motion shall deliver one copy of the

following documents to opposing

counsel * * * at least 9 days prior to the

hearing:

(A) Memorandum of Law

(B) Affidavits and Exhibits.

STATEMENT OF THE CASE

Contained in the two questions Petitioner presents for

review is Petitioner’s assertion that it has complied with the

ADEA’s notice provisions and it has committed no misconduct.

Respondents request that this subsidiary question, clearly

included in Petitioner’s two principle questions, be raised with

and reviewed by the Court.

8

In the 18 months from June of 1992, when Petitioner was

first served with discovery from Respondents, to December 14,

1993, Petitioner never disclosed any evidence showing that it had

posted the required ADEA notice at the facility in which most of

the Respondents had worked. Only after the expiration of both the

discovery and dispositive motion deadlines and after Petitioner

had already lost a summary judgment motion on the ADEA notice

issue, did Petitioner produce critical and surprising evidence

purporting to show an ADEA posting at Respondents’ place of

work. The district court permitted Petitioner to make a second

summary judgment motion on the same issue, violating the

scheduling order previously issued in the action because the

dispositive motion deadline had passed. The district court then

gave Respondents only 5 days to respond, instead of the 19 days

the local practice rules provide to parties responding to summary

judgment motions. One week later, without a hearing, on

December 28, 1993 the district court entered summary judgment

against the Respondents, in spite of long standing and substantial

evidence that showed Petitioner had not complied with ADEA

notice provisions, some of which had been in the district court’s

file for one year. These actions by the district court were a drastic

and serious departure from the accepted and usual course of

judicial proceedings and warrant review.

Respondents oppose Petitioner’s request that the question,

whether ambiguous and misleading representations by agents of

the EEOC toll the charge filing period, be reviewed. Petitioner

has made several misstatements on this issue in its Petition. The

Minnesota Department of Human Rights’ (“MDHR”)

representations on the ADEA’s charge filing deadline to

Respondent Anderson were not, as Petitioner claims, “accurate

but incomplete.” Instead, as the Eighth Circuit states, the

representations were “ambiguous and misleading.” The MDHR

did not tell Respondent Anderson, as Petitioner incorrectly

implies in its Statement of the Case, that the Minnesota statute’s

9

charge filing period was one year. Rather, the MDHR did not

indicate whether the one year charge filing period disclosed to

Respondent Anderson was the state filing period, the federal

filing period, or the filing period under both federal and state law.

Petitioner’s allegation, that the Eighth (Circuit’s decision to

equitably toll the ADEA charge filing period is in direct conflict

with the decisions of the other Circuits, is incorrect.

Respondents have filed an associated criss petition for a writ

of certiorari.

FACTUAL BACKGROUND

A. Involuntary Terminations

All seven Respondents were employed for many years by

Petitioner in its Software Engineering Department. They were all

selected for termination at the same management meeting and

were not discharged in two distinct layoffs, as Petitioner

incorrectly claims. Six were told they were laid off on April 2,

1990. Petitioner delayed informing the seventh Respondent of his

discharge, Donald Woods, until June 18, 1990.

Petitioner initially misled Respondents by claiming

Respondents were being laid off in a “reduction in force.”

Evidence uncovered through discovery shows that the number of

employees and contract workers in the Software Engineering

Department actually increased following this alleged “reduction

in force.”

B. Administrative Proceedings

Respondent Anderson is the lead Plaintiff in this action. He

filed a pro se administrative charge and subsequently

commenced this action by filing a pro se Complaint. If his

10

administrative charge is viable, other Respondents should be able

to “piggyback” on his filing. Kloos v. Carter-Day Co., 799 F.2d

397 (8th Cir. 1986).

In the fall of 1990 Respondent Anderson contacted the

Minnesota Department of Human Rights (“MDHR”). The

MDHR informed Respondent Anderson, in writing, that if his

charge alleged a violation of federal law, it would notify the Equal

Employment Opportunity Commission (EEOC) for him. The

MDHR is a deferral agency under federal law and has a working

relationship with the EEOC.

The MDHR, in writing, also told Respondent Anderson that

the charge filing period was one year, without indicating whether

this period was for state claims, federal claims, or both.

Respondent Anderson did not know that the one year period was

for state law claims only, and that the ADEA filing period was

shorter and only 300 days. Petitioner’s claim, made for the first

time in its current petition, that there is no evidence that

Respondent Anderson relied on the MDHR’s misleading

representation, is incorrect.

Supposedly, federal procedures governing administrative

charges of discrimination are designed to enable claimants to

represent themselves, and that is what Respondent Anderson

proceeded to do for the next year. From the time of his layoff in

April of 1990 until June of 1992, when Respondent Anderson

contacted the below identified Counsel of Record, Respondent

Anderson was not represented by an attorney. Petitioner’s claim

on page 7 of its Petition, that Respondent Anderson consulted

with Attorney O’Brien after his administrative charge was

dismissed, is false. Petitioner’s implication, on page 6 of its

Petition, that Respondent Anderson, like the rest of the filing

Respondents, consulted with Attorney O’Brien on charge filing

procedures, is incorrect. Respondent Anderson was relying on the

MDHR’s representations on the charge filing period.

1]

As aresult, when Respondent Anderson, on March 25, 1991,

filed a pro se administrative charge with the MDHR, he thought

he was complying with the only applicable filing period. Though

Respondent Anderson had filed within the state administrative

filing limitations period, Minn. Stat. § 363.06, subd. 3, he had

not filed within the federal administrative filing period, 29 U.S.C.

§ 626(d).

Age discrimination charges were also filed by Respondents

Eggan, Englehorn, Lowry, Wandersee and Woods.

Petitioner, in its defense to the administrative charges,

repeated the misrepresentation that Respondents were

discharged in a “reduction of force”. The MDHR subsequently

dismissed the claims of the six Respondents who had filed

administrative charges.

C. Commencement of the Action

On February 10, 1992, Respondent Anderson filed a pro se

Complaint in federal court. Contrary to Petitionei ’s suggestions,

this Complaint did allege that the layoff which included

Respondent Anderson disproportionately impacted Petitioner’s

older workers and that Petitioner had discriminated against him

as well as other older workers because of their age.

The pro se Complaint was not immediately served. It was

Respondent Anderson’s understanding that the commencement

date of both his federal and state claims would be the filing date as

long as the pro se Complaint was served within 120 days of its

filing, in compliance with Federal Rules of Civil Procedure 3 and

4(m). The district court did not share the same understanding and

later held that the State Procedural Rule, which provides that an

action is commenced only upon service, and not upon filing,

determined the commencement time for the state claims. In the

12

119 days between filing and service, the district court held that

the limitations statute on the state law claims had run. As a result,

the state law claims of all of the Respondents were dismissed.

Respondent Anderson eventually retained an attorney and,

shortly thereafter, filed in June of 1992 an Amended Complaint.

The Amended Complaint alleged that the administrative charge

had been timely filed. It also specifically stated that Respondent

Anderson intended to seek certification for a class action. Both

the Amended Complaint and the pro se Complaint were served on

Petitioner on June 9, 1992.

It would still be another six months before Respondent

Anderson learned that Petitioner would make an issue out of the

alleged untimeliness of Respondent Anderson’s administrative

filing. For example, in its July 10, 1992 Answer to Respondent

Anderson’s Amended Complaint, Petitioner specifically

admitted that Respondent Anderson’s administrative charge was

timely. Petitioner also failed to assert as a defense in its Statement

of the Case 1 1/2 months later a claim that Respondent

Anderson’s administrative charge was untimely.

D. Motion for Class Certification; Timeliness Issue Raised

by Petitioner for the First Time; No Evidence of Posting at

Respondent Anderson’s Facility

On December 9, 1992, Respondent Anderson moved the

court to certify a class consisting of employees of Petitioner's

Software Engineering Department who were terminated in 1990.

In its response to this motion Petitioner, for the first time, raised

as an issue the timeliness of Respondent Anderson’s

administrative charge. Petitioner claimed that because

Respondent Anderson’s administrative charge was defective, no

additional putative Plaintiffs could piggyback on it.

13

Respondent Anderson argued that there were several reasons

why tolling of the charge filing period was justified. The district

court rejected all but one of them, including the argument that

tolling was justified because of the misleading statements on the

charge filing period by the MDHR.

The district court did find that there was evidence to justify

tolling on one basis, however. Respondent Anderson had never

seen a proper ADEA notice at the building he had worked at prior

to his departure. He did not know when he was discharged that he

was old enough to be protected under the age discrimination laws.

He filed an affidavit in which he testified that Petitioner had not

posted in his building the legally required notice on the ADEA.

Prior to this motion, Petitioner had not disclosed any evidence of

a posting at Respondent Anderson’s facility, nor did Petitioner

produce any evidence in connection with this motion

contradicting Respondent Anderson’s affidavit.

On March 25, 1993, the district court ruled that there was

evidence showing that Petitioner had failed to comply with

ADEA notice provisions, held that a failure to post would toll the

ADEA administrative charge filing period, and concluded that

Respondent Anderson had evidence that could establish his

charge was timely. The district court denied Respondent

Anderson’s request for class certification on the grounds that the

requested class was not sufficiently numerous, but ruled the

additional Respondents could piggyback on Respondent

Anderson’s claim and join this action. The five Respondents who

had filed administrative charges, along with Respondent Nielsen,

who had not, joined the action in June of 1993.

E. Motion to Dismiss the Non-Anderson/Nielsen

Respondents

On July 28, 1993 Petitioner moved for the dismissal of the

14

non-Anderson/Nielsen Respondents. The district court granted

this motion on October 20, 1993, but did not enter an appealable

judgment or order. Petitioner did not move for the dismissal of the

ADEA claims of Respondents Anderson and Nielsen at this time.

F. Summary Judgment Motions on the ADEA Posting Issue

When the discovery period expired on October 1, 1993,

Petitioner still had not produced any evidence in response to

Respondents’ discovery indicating there had been an ADEA

posting at Respondent Anderson’s place of work. Nonetheless,

Petitioner made two motions requesting summary judgment on

the posting issue anyway.

Petitioner’s first motion was formally made on September

28, 1993, only three days before the discovery period expired and

without the motion’s supporting exhibits and evidence. When the

supporting materials were delivered, Petitioner conceded it had

no evidence of an ADEA posting at Respondent Anderson’s

facility. Instead, Petitioner disclosed, for the first time, specific

details of an alleged ADEA posting in a human resources office in

another building, several miles away, and argued that this posting

was legally sufficient. However, Respondent Anderson had

visited a human resource office only 8 or 10 times in his 25 years

with Petitioner. In response to this motion, Respondents also

submitted additional material confirming Respondent

Anderson’s affidavit, submitted 11 months earlier, that there had

not been an ADEA posting at Respondent Anderson’s place of

work. The district court denied Petitioner’s first summary

judgment motion on December 1, 1993. The same day the

dispositive motion deadline expired.

On December 14, 1993, well after both the discovery and

dispositive motion deadlines had expired, Petitioner made a

second summary judgment motion on the identical issue.

15

Petitioner was now claiming there was an ADEA posting at

Respondent Anderson’s building. The affidavits of four

previously undisclosed witnesses were submitted in support. In

nearly identical language, all four witnesses expressed absolute

certainty that there had been a proper ADEA posting at

Respondent Anderson’s facility. They had been guards who had

worked only 1 out of every 7 or so weeks at Respondent

Anderson’s building over three years earlier.

Even though the local rules of the district court require that

summary judgment motions had to be served upon an opposing

party 28 days in advance of a hearing, and that the opposing party

had up to 9 days prior to the hearing to respond, on December 15,

1993, the district court orally ordered Respondents to reply

within 5 days. On December 28, 1993, without a hearing, the

district court granted a summary judgment against all of the

Respondents: In an order dated January 7, 1994, the district court

denied Respondents’ motion to reconsider.

The Respondents timely appealed the district court’s

judgment to the Eighth Circuit Court of Appeals.

Essentially, three general issues were raised in the appeal —

whether Respondent Anderson’s administrative filing was

timely; whether Respondent Anderson commenced the action

before the litigation limitations period on the state claims had

lapsed; and whether the non-Anderson/Nielsen Respondents

could piggyback their ADEA claims onto the ADEA claims of

Respondent Anderson. The first of these three general issues is

addressed in this brief. The last of these three general issues is

addressed in Respondents’ Cross Petition for a Writ of Certiorari.

In its February 14, 1995, decision, the Eighth Court of

Appeals partially reversed the district court and restored the

ADEA claims of two of the Respondents, Richard Anderson and

16

Norris Nielsen. The Court of Appeals held that the MDHR’s

representations on the administrative charge filing period had

misled Respondent Anderson, that the 300 day ADEA filing

period was tolled, and that Respondent Anderson’s

administrative charge was timely. The Respondents had argued to

the Court of Appeals that tolling of the ADEA charge filing period

was justified on other grounds as well, including Petitioner’s

failure to comply with ADEA notice provisions, and that

Respondent Anderson’s charge was timely under the continuing

violation doctrine, but the Court of Appeals concluded it did not

have to address these other arguments, given that it had already

found Anderson’s charge was timely.

REASONS FOR DENYING THE WRIT

I.

THE EIGHTH CIRCUIT’S DECISION, THAT

AMBIGUOUS AND MISLEADING WRITTEN

REPRESENTATIONS BY THE EEOC TO A PRO SE

CLAIMANT TOLL THE ADEA ADMINISTRATIVE

CHARGE FILING PERIOD, IS CONSISTENT AND NOT

IN CONFLICT WITH THE DECISIONS OF THE OTHER

CIRCUITS; THERE IS NO COMPELLING NEED TO

REVIEW THIS ISSUE.

Petitioner asks that this question be reviewed to resolve an

alleged difference on the issue among the Circuits. A review of

this issue, however, is not justified on these grounds.

Simply put, Petitioner’s alleged conflict among the Circuits

does not exist. Petitioner incorrectly creates the appearance of a

conflict by mischaracterizing the Minnesota Department of

Human Rights’ representations to Respondent Anderson.

17

The Eighth Circuit correctly characterized the MDHR’s

language as “ambiguous and misleading” in its opinion A-15.

Petitioner’s assertion that the communication was “accurate but

incomplete” ignores the Eighth Circuit’s actual holding and

allows Petitioner to compare apples with oranges in its case law

analysis.

For example, contrary to Petitioner’s claim, there is no

conflict between the Tenth Circuit and the Eighth Circuit on this

issue. The Tenth Circuit has also adopted the principle that

“ambiguous and misleading” written statements by the EEOC

justify tolling if they were made to an unrepresented claimant.

Martinez v. Orr, 738 F.2d 1107 (10th Cir. 1984). That Martinez

continues to be good law in the Tenth Circuit was confirmed in

Scheerer v. Rose State College, 950 F. 2d 661, 665 (10th Cir.

1991).

In Long v. Frank, 22 F.3d 54 (2d Cir. 1994) the statement in

question was uncertain — but it was not misleading because the

EEOC’s uncertainty stemmed from inconsistent case law. The

EEOC was informing, accurately, the claimant in Long that the

law was uncertain, and capitalized the word “may” to emphasize

that uncertainty.

The holding in Conaway v. Control Data Corp., 955 F.2d 358

(Sth Cir. 1992) does not conflict with the Eighth Circuit’s

decision for another reason — the communication in question

was oral and not in writing. The Court in Conaway made it clear

that the oral nature of the alleged communication was the

significant factor in the outcome.

The EEOC undoubtedly engages in numerous

telephone calls every day. It would be

virtually impossible for the EEOC or a

defendant to rebut a plaintiff's unsupported

18

allegation that the EEOC provided

incomplete information in a_ telephone

conversation. Allowing a plaintiff equitably

to toll a time limitation based on incomplete

information provided in a_ telephone

conversation would create a great potential

for abuse.

955 F.2d at 363.

Finally, in Kocian v. Getty Refining & Marketing Co., 707

F.2d 748 (3rd Cir. 1983) the key fact was that the allegedly misled

claimant had retained an attorney.

Il.

APPLYING THE SAME EQUITABLE TOLLING

PRINCIPLES THAT APPLY TO THE EEOC TO STATE

HUMAN RIGHTS AGENCIES THAT ARE LEGALLY

AUTHORIZED AGENTS OF THE EEOC DOES NOT

RAISE THE CONSTITUTIONAL ISSUE OF STATE

USURPATION OF FEDERAL POWER.

Petitioner argues that the Eighth Circuit’s decision allows

State officials to “alter” federal statutes of limitations and

unconstitutionally usurp federal power.

There is no constitutional issue here. Petitioner is ignoring

the fact that any ability the MDHR has to “alter” (in reality toll)

the ADEA statute of limitations, if it misleads claimants on the

limitations period, is only a result of power and responsibilities

that have been freely and gladly delegated to it by the Federal

Government. No usurpation has taken place.

Federal law encourages states to adopt and enforce age

19

discrimination laws, and tries to delegate to the states the EEOC’s

role of promoting fairemployment practices. States that do so are

called “deferral states.” 29 U.S.C. § 633. In deferral states,

ADEA claimants must invoke state proceedings if they wish to

preserve their federal claims. Oscar Mayer & Co. v. Evans, 441

U.S. 750, 99S. Ct. 2066, 60 L. Ed. 2d 609 (1979).

Minnesota is an ADEA deferral state. 29 C.F.R. § 1626.9.

When Respondent Anderson’s administrative charge was being

investigated, the MDHR was in effect acting as the EEOC’s

representative.

20

ITI.

THE DISTRICT COURT’S RULINGS - (1) ALLOWING

PETITIONER TO WITHDRAW ITS PRIOR ADMISSION

THAT RESPONDENT ANDERSON’S CHARGE WAS

TIMELY; (2) GRANTING PETITIONER’S REQUEST TO

MAKE A SECOND SUMMARY JUDGMENT MOTION ON

PETITIONER’S COMPLIANCE WITH ADEA NOTICE

PROVISIONS AFTER THE DISPOSITIVE MOTION

DEADLINE HAD EXPIRED; (3) PERMITTING

PETITIONER TO USE SURPRISE EVIDENCE TO SUPPORT

ITS SUMMARY JUDGMENT MOTION, THAT HAD NOT

BEEN DISCLOSED TO RESPONDENTS PRIOR TO THE

EXPIRATION OF THE DISCOVERY DEADLINE; (4)

ORDERING RESPONDENTS TO RESPOND IN 5 DAYS TO

PETITIONER’S SUMMARY JUDGMENT MOTION

INSTEAD OF THE 19 DAYS AS REQUIRED UNDER THE

LOCAL PRACTICE RULES; (5) FAILING TO SCHEDULE A

HEARING ON THE SECOND SUMMARY JUDGMENT

MOTION; (6) REFUSING TO REOPEN DISCOVERY IN

LIGHT OF PETITIONER’S SURPRISE EVIDENCE; (7)

ISSUING A SUMMARY JUDGMENT ORDER BASED ON

THE SURPRISE EVIDENCE AND DESPITE PREVIOUSLY

SUBMITTED, CONTRADICTORY EVIDENCE THAT HAD

NOT BEEN DISCREDITED — SO DRASTICALLY AND

SERIOUSLY DEPARTED FROM THE ACCEPTED AND

USUAL COURSE OF JUDICIAL PROCEDURE: AND THE

COURT OF APPEALS’ FAILURE TO RULE ON THIS

DEPARTURE: CALL FOR THE EXERCISE OF THE

COURT’S POWER OF SUPERVISION.

Both in the questions Petitioner contends this case presents,

and in its arguments supporting its request for a review of these

questions, Petitioner claims it complied with the ADEA’s notice

provisions. The district court granted Petitioner's second

ant

21

summary judgment motion on this issue, but it was based on

suspicious evidence and the circumstances leading up to the order

are disturbing. The circumstances of and the evidence relied upon

by the district court were brought to the attention of the Eighth

Circuit, but the Eighth Circuit did not address this issue.

29 U.S.C § 627 requires employers to post and keep posted

in conspicuous places upon their premises an ADEA notice

prepared or approved by the EEOC. 29 C.F.R. § 1627.10 adds

that the notice must be posted in “prominent and accessible

places where it can be readily observed by employees (and)

applicants foremployment * * *.” (emphasis added).

Well established law in all of the circuits holds, and

Petitioner does not contest, that an employer’s failure to post the

required notice can toll the administrative charge filing period.

DeBrunner v. Midway Equipment Co., 803 F.2d 950 (8th Cir.

1986).

Petitioner’s previous and numerous interrogatory answers,

signed under oath, gave absolutely no indication there was a

posting at Respondents’ place of work. The surprising testimony

from the 4 guards contradicted these prior discovery responses.

Their affidavit testimony, submitted in a summary judgment

proceeding and contrary to Petitioner’s earlier sworn discovery

responses, should have been ignored by the district court.

Camfield Tires, Inc. v. Michelin Tire Company, 719 F.2d 1361

(8th Cir. 1983); Van T. Junkins and Associates Inc. v. U.S.

Industries, Inc., 736 F.2d 656 (11th Cir. 1984).

Even on July 28, 1993, when Petitioner moved for a

bifurcated hearing on the ADEA posting issue, Petitioner

submitted no evidence indicating that it had posted an ADEA

notice at Respondent Anderson’s place of work.

22

Serious procedural irregularities proceeded the summary

judgment order.

The district court violated a prior court order by permitting

Petitioner to make its December 14, 1993 summary judgment

motion and by allowing the surprising evidence to be submitted.

A September 14, 1992 order establishing the pretrial schedule

Stated that discovery would terminate on October 1, 1993. The

same order also held that all motions for summary judgment had

to be made and heard on or before December 1, 1993.

The district court did not display a similar procedural

indulgence towards Respondents. The day after Petitioner made

its motion, Respondents received a verbal order from the district

court to respond within five days. Respondents were entitled to

19 days under the local rules. Local Rules for United States

District Court for the District of Minnesota, Rule 7.1(b).

Additionally, Respondents’ request that the discovery period be

reopened, because of Petitioner’s new evidence, was denied.

Serious departures from substantive fairness also occurred.

Summary judgment is not appropriate if there is a genuine

factual conflict. AgriStor Leasing v. Farrow, 826 F.2d 732 (8th

Cir. 1987).

The district court had in the past acknowledged the existence

of evidence contradicting Petitioner’s. On two occasions before

its December 28, 1993 summary judgment order holding that

Respondents had no evidence contesting Petitioner’s new and

surprising evidence, the district court had specifically ruled there

was evidence that Petitioner had failed to post. The first time was

in its March 25, 1993 order allowing the joinder of additional

Plaintiffs. In its December 1, 1993, denial of Petitioner’s first

request for summary judgment, the district court explicitly held

that there was evidence that Petitioner failed to comply with

ADEA notice provisions.

23

Moreover, there was absolutely no indication that

Respondent’s evidence had suddenly and massively been

discredited. Respondent Anderson had consistently, over a period

close to one year, testified that he had regularly looked at the

bulletin boards in his place of work, that he never saw a posting in

conformance with the ADEA and that such notice was not posted.

(His second affidavit was dated December 31, 1992; his third

affidavit was dated August 11, 1993; his deposition was taken on

August 12 and 13 of 1993; and his fourth affidavit was dated

November 22, 1993). Current employees of Petitioner also

confirmed there was not a conspicuous and prominent ADEA

posting at the complex where most of the Respondents had

worked.

CONCLUSION

Due to serious and drastic departures from the accepted and

usual course of judicial procedure, and the Eighth Circuit Court

of Appeals’ failure to address these significant departures,

Respondents request that the district court’s treatment of the issue

of whether Petitioner complied with ADEA notice provisions be

reviewed.

Respectfully submitted,

DOUGLAS P. KEMPF

Counsel of Record

KEMPF & KEMPF

One Paramount Plaza, Suite 260

7801 East Bush Lake Road

Bloomington, Minnesota 55439

(612) 844-9939

la

APPENDIX A — PRETRIAL SCHEDULE OF THE

UNITED STATES DISTRICT COURT, DISTRICT OF

MINNESOTA FOURTH DIVISION

DATED SEPTEMBER 14, 1995

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FOURTH DIVISION

Civil 4-92-138

Richard Anderson,

Plaintiff,

Unisys Corporation,

Defendant

PRETRIAL SCHEDULE

DOUGLAS P. KEMPF, Esq., KEMPF & KEMPF, for plaintiff.

THOMAS M._ SIPKINS, Esq., POPHAM, HAIK,

SCHNOBRICH & KAUFMAN, for defendant.

Pursuant to Rule 16, Federal Rules of Civil Procedure, and in

order to secure the just, speedy, and inexpensive determination of

this action, the following schedule shall govern these

proceedings. The schedule may be modified only upon formal

motion and a showing of good cause as required by Local Rule

16.3.

1. The period during which the parties may conduct

2a

Appendix A

discovery shall terminate on October 1, 1993. Disputes with

regard to discovery shall be called immediately to the court’s

attention by the making of an appropriate motion, and shall not be

relied upon by any party as a justification for not adhering to this

pretrial schedule;

2. All motions which seek to amend the pleadings or add

parties, including a class certification motion, must be filed and

heard on or before February 1, 1993;

3. All other nondispositive motions, specifically those

which relate to discovery and the discovery period, shall be filed

and served prior to October 1, 1993. All nondispositive motions

shall be scheduled for hearing by calling Cathy Orlando, calendar

clerk for the undersigned magistrate judge. All nondispositive

motions shall be scheduled, filed and served in compliance with

Local Rule 7.1(a). A total of 15 minutes will be allotted to each

party who appears to present argument on the motion. The

moving party may reserve up to five of the 15 minutes for

rebuttal. No discovery motion shall be heard unless the moving

party files with the motion the statement required by Local Rule

37.1 and complies with the requirements of Local Rule 37.2;

4. That within the foregoing period allotted for discovery,

but no later than July 1, 1993, plaintiff shall retain and disclose to

opposing counsel all persons he intends to call as expert

witnesses at trial. The disclosure shall identify each expert and

state the subject matter on which the expert is expected to testify.

If interrogatories have been served which seek the substance of

the facts and opinions to which the expert is expected to testify

and a summary of the grounds for each opinion, plaintiff's

answers to such interrogatories shall be fully supplemented and

served on or before July 1, 1993;

3a

Appendix A

5. That within the foregoing period allotted for discovery,

but no later than August 1, 1993, defendant shall retain and

disclose to opposing counsel all persons it intends to call as

expert witnesses at trial. The disclosure shall identify each expert

and state the subject matter on which the expert is expected to

testify. If interrogatories have been served which seek the

substance of the facts and opinions to which the expert is

expected to testify and a summary of the grounds for each

opinion, defendant’s answers to such interrogatories shall be

fully supplemented and served on or before August 1, 1993;

6. All dispositive motions shall be filed and the hearing

thereon completed prior to December 1, 1993. All dispositive

motions shall be scheduled, filed and served in compliance with

Local Rule 7.1(b). Counsel should be forewarned that six to eight

weeks advance notice is necessary to place a motion on Judge

MacLaughlin’s dispositive motion calendar;

7. This case shall be considered ready for trial on and after

February 1, 1994.

DATED: Sept. 14, 1992

s/ Franklin L. Noel

FRANKLIN L. NOEL

United States Magistrate Judge

4a

APPENDIX B — MEMORANDUM AND ORDER OF

THE UNITED STATES DISTRICT COURT, DISTRICT

OF MINNESOTA FOURTH DIVISION

FILED MARCH 25, 1993

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FOURTH DIVISION

CIVIL 4-92-138

Richard Anderson,

Plaintiff,

v.

UNISYS Corporation d/b/a Remington Rand Univac d/b/a

Sperry Univac d/b/a Sperry d/b/a Unisys, d/b/a Paramax

Systems,

Defendant.

MEMORANDUM AND ORDER

Douglas P. Kempf, Kempf & Kempf, 205 Dupont Center, 9801

Dupont Avenue South, Bloomington, MN 55431, for piaintiff.

William R. Skallerud, Thomas M. Sipkins, Popham, Haik,

Schnobrich & Kaufman, 3300 Piper Jaffray Tower, 222 South

Ninth Street, Minneapolis, MN 55402, for defendant.

This matter is before the Court on plaintiff’s motion for class

certification in this action for age discrimination. Plaintiff’s

motion will be denied.

asco

Sa

Appendix B

FACTS

Plaintiff Richard Anderson had been continuously employed

by defendant Unisys Corporation and its predecessor companies

from 1965 to 1990.' Plaintiff began in 1965 as a staff

mathematician. On April 2, 1990, as part of a reduction in force,

plaintiff was involuntarily laid off by the Software Engineering

Department, a division of Unisys. At the time of his layoff

plaintiff was forty-nine years old and held the title of Staff

Consultant Development Engineer.

The circumstances surrounding the reduction in force are in

dispute. Defendant admits that in late 1989 defendant’s senior

management instructed the Director of Software Engineering,

Donna Kaspersen, to prepare for layoffs within her division.

Def.’s Mem. Opp. Mot. Class Cert. at 3. Kaspersen directed the

managers she supervised to prepare a ranking of employees based

on skill level and the continued need for the job position.

Kaspersen held a meeting of her managers on February 7, 1990 to

review the rankings. Through discovery, plaintiff obtained

handwritten notes that were taken at that meeting and which show

stars or checks next to the names of all employees eventually laid

off. Affidavit of Douglas P. Kempf Exh. 19. When the layoffs

took place on April 2, 1990, fourteen employees within the

Software Engineering Division were affected. Kempf Aff. Exh.

1. Twelve out of fourteen were over age forty. /d.* Plaintiff alleges

1. Unisys was formed by the merger of Burroughs Corporation and Sperry

Corporation in 1986. Plaintiff had been employed by Sperry before the merger.

Comp!l.{ 20.

2. Plaintiff claims that fifteen persons were laid off and thirteen of those

people were more than forty years old. However, the evidence submitted by

plaintiff shows only fourteen layoffs, twelve of which affected people over forty.

Kempf Aff. Exh. 1.

6a

Appendix B

that the notes from the February 7 meeting make clear that

defendant expected the involuntary layoffs to have a

disproportionate impact on older employees. Defendant states

that in designating certain employees as layoff candidates no

consideration was given to the employee’s age and every effort

was made to place the employees within other divisions of

Unisys.

Plaintiff did not file an administrative claim within 300 days

of his layoff, as required by the Age Discrimination in

Employment Act (ADEA). Plaintiff contends that defendant

never posted notice, as required by law, of rights protected by the

ADEA. Plaintiff states that if such notice had been posted he

would have seen it because after the layoff he regularly checked

defendant’s employee bulletin boards, at defendant’s

encouragement, in search for new position within the company.

Second Affidavit of Richard Anderson 3. Plaintiff claims that

because defendant did not post notice of his rights under the

ADEA, he had only a general awareness of age discrimination

laws. Id. { 2. More specifically, plaintiff claims that he thought

age discrimination laws only protected workers over fifty years

old and, because he was forty-nine at the time of his layoff, he

assumed he was not covered. Jd.

Plaintiff asserts that he first became aware that defendant

may have violated the ADEA during a conversation with Stephen

Cooper of the Minnesota Department of Human Rights in the fall

of 1990. Id. { 5. In response to his conversation with Cooper,

plaintiff requested information from the Human Rights

Department. /d. The information provided by the department

stated that “[y]ou have one year from the date of the action

complained of to file a discrimination charge.” Jd. Exh. Plaintiff

eventually filed a charge of age discrimination with the

Ta

Appendix B

Minnesota Department of Human Rights on March 25, 1991,

which was within one year of his layoff. On September 25, 1991,

the Minnesota Department of Human Rights dismissed the

charges after concluding that the evidence was insufficient to

indicate that defendant had a pattern and practice of terminating

older employees in numbers disproportionate to their

representation in the work force. Affidavit of Richard Anderson

Exh. 7. On December 26, 1991, plaintiff formally requested that

the department reconsider its conclusions, but the department

refused.

Plaintiff filed a complaint, pro se, in federal district court on

February 10, 1992 alleging age discrimination in violation of

both federal and state law. Apparently plaintiff obtained legal

representation after February 10, 1992, but before June 9, 1992,

when plaintiff filed a amended complaint in which plaintiff

claimed to represent a class of similarly-situated employees.

As evidence of discrimination, plaintiff offers the Court a

detailed statistical analysis which he prepared, utilizing his skills

as a mathematician, for the purposes of this motion. Plaintiff

prepared the statistical analysis based on information obtained

during discovery. The data offered by plaintiff includes fourteen

pages of graphs and charts, and purports to establish that the

probabilities are slim that the lay-offs were not related to age.

More specifically, plaintiff claims that his statistical analysis

establishes that the percentage of older workers laid off from his

department, Software Engineering, were much greater than in

any other department within the company.

Plaintiff also alleges that the layoffs in the Software

Engineering Division did not comply with defendant’s layoff

policy. That policy states that part-time, temporary, and

8a

Appendix B

subcontract employees should be laid off first. Kempf Aff. Exh.

20. If management choose to layoff a full-time employee before a

part-time, temporary, or subcontract employee, management was

required to provide written reasons for that choice. /d. Plaintiff

alleges that only one out of four part-time employees were laid

off, and no subcontractors were terminated. Plaintiff claims that

defendant invented reasons for laying off particular full-time

employees after the February 7, 1990 meeting, where plaintiff

claims defendant decided who would be let go. Plaintiff also

alleges that once an older employee was considered a candidate

for layoff, supervisors were pressured to lower any subsequent

performance ratings for that employee, thereby providing a

justification for the layoff decision. See Kempf Aff. Exh. 27, 28.

Finally, plaintiff claims that defendant provided the

Minnesota Department of Human Rights with misleading

information which was relied upon in dismissing plaintiff’s

charge. Plaintiff alleges that the data supplied was misleading

because it covered persons who left voluntarily as well as those

who were forced to leave, included both exempt and non-exempt

employees,’ included several departments, and listed certain

employees who had been laid off as still active. Plaintiff alleges

that by providing misleading information defendant successfully

obscured the nature of the lay-offs which occurred in the

Software Engineering Division in April 1990.

Plaintiff requests that the Court certify a class action so that

thirteen additional plaintiffs may join this lawsuit. Eleven of the

thirteen were laid off at the same time as plaintiff. In regard to the

other two potential plaintiffs, one was apparently laid off in June

1990, Kempf Aff. Exh. 30; Def.’s Mem. Opp. Mot. Class Cert. at

3. As defined by the Fair Labor Standards Act.

9a

Appendix B

5, and the other voluntarily left because he was allegedly given

trivial work, his supervisory duties were taken away, and was

moved to a smaller office. Kempf Aff. { 36.

DISCUSSION

Plaintiff requests that the Court certify a class action for

alleged violations of the ADEA. Three issues must be resolved.

First, the Court must decide whether plaintiffs are procedurally

barred from bringing a class action. Second, if plaintiffs are not

procedurally barred, the Court needs to determine whether the

putative plaintiffs are “similarly situated.” Third, if the Court

resolves these issues in plaintiff’s favor, the Court must decide

what type of notice to putative class members is appropriate.

I. Timeliness of Administrative Filing

Summary judgment is appropriate when a plaintiff fails to

file an ADEA claim in a timely manner. Kraemer v. University of

Minnesota, 752 F.Supp. 283, 285 (D.Minn.), aff'd without

opinion, 915 F.2d 1579 (8th Cir. 1990), cert. denied, 111 S.Ct.

680 (1991). “Persons seeking relief under the ADEA in states

with laws prohibiting age discrimination in employment are

required to file an administrative charge of discrimination with

the proper state agency within three hundred days of the alleged

unlawful practice as a prerequisite to bringing a civil action.”

Kloos v. Carter-Day Co., 799 F.2d 397, 399 (8th Cir. 1986); see

also 29 U.S.C. § 626(d)(2).4 The administrative filing

requirement serves two purposes. First, it gives the state agency

an opportunity to eliminate unlawful practices through informal!

4. States with age discrimination laws are deemed “referral states.” K/oos,

799 F.2d at 399. Minnesota is areferral state. /d.;29C.F.R. § 1626.9.

10a

Appendix B

conciliation. Ulvin v. Northwestern Nat. Life Ins. Co., 943 F.2d

862, 865 (8th Cir. 1991), cert. denied, 112 S.Ct. 970 (1992).

Second, it provides employers with formal notice of the charges

being brought against them. /d. The party may commence a civil

action sixty days after the administrative filing. 29 U.S.C.

§ 626(d).

A failure to comply with the 300-day filing requirement is

not necessarily fatal. The 300-day period may be equitably tolled

“when the circumstances that cause a plaintiff to miss a filing

deadline are out of his hands.” Heideman v. PFL, Inc., 904 F.2d

1262, 1266 (8th Cir. 1990), cert. denied, 111 S.Ct. 676 (1991). In

other words, the Court should find that the 300-day period tolled

if defendant engaged in some “positive misconduct” which

prevented plaintiff from making a timely charge. /d. “Positive

misconduct” includes concealment, misrepresentation, or failure

to post a notice of rights as required by the ADEA. Nielson v.

Western Electric Co., Inc., 603 F.2d 741, 743 (8th Cir. 1979).

Defendant asserts that plaintiff’s administrative charge was

not timely because it was filed on March 25, 1991, more than 300

days after April 2, 1990, the date of plaintiff’s termination. In

addition, defendant argues that plaintiff has no legally cognizable

excuse for missing the 300-day time limit. Defendant asserts that

this fact disposes of the entire case.

Plaintiff admits that his administrative filing was not timely

under the ADEA. Plaintiff argues, however, that the Court should

find that the filing period was tolled for several reasons. First and

most important, plaintiff argues that defendant did not provide

plaintiff with adequate notice of his nghts under the ADEA.

Plaintiff assert that at the time of his layoff he had an incomplete

understanding of the ADEA. More specifically, plaintiff contends

~aoa

lla

Appendix B

that he thought the ADEA only protected workers over fifty and

he was forty-nine at the time of the layoff. Anderson Aff. { 2.

Second, plaintiff asserts that he contacted the Minnesota

Department of Human Rights immediately after Stephen Cooper

of that department advised him to file an administrative charge

and that the documents the Human Rights Department sent to him

informed him that he had one year under state law to file a charge,

but made no reference to the 300-day deadline imposed by the

ADEA. Id. { 5-6. Plaintiff contends that the fact that no other

employee filed an administrative charge within the 300-day

period indicates that no one was adequately informed of their

rights under the ADEA. Finally, plaintiff asserts that a finding

that the 300-day period was tolled would not prejudice defendant.

Defendant does not respond to each of plaintiff’s arguments

specifically, although defendant does claim that it posted notices

of rights under anti-discrimination laws. Def.’s Answers to P1.’s

Interrogatories at 7.

The only legally adequate justification offered by plaintiff

for equitable tolling is failure to provide adequate notice. While

the information provided by the Minnesota Department of

Human Rights may have misled plaintiff and caused him to

believe that under the ADEA he had a full year to file his

administrative charge, equitable tolling is only appropriate if the

failure to file a timely charge is attributable to conduct of the

defendant. Heideman vy. PFL, Inc., 904 F.2d 1262, 1266 (8th Cir.

1990), cert. denied, 111 S.Ct. 676 (1991). In regard to the notice

of rights issue, based on the evidence provided to the Court to

date, a genuine issue of material fact exists whether defendant

posted statutorily-required notice. If defendant failed to post

notice, the 300-day period was tolled until plaintiff acquired

actual knowledge of his right not to be discriminated against on

the basis of age. DeBrunner v. Midway Equip. Co., 803 F.2d 950,

12a

Appendix B

952 (8th Cir. 1986). In the absence of posted notice, defendant

bears the burden of proving that plaintiff was aware of his rights.

Id. Plaintiff has offered evidence that he did not become aware of

his rights until sometime in the fall of 1990 when he spoke with

Stephen Cooper of the Minnesota Department of Human Rights.

Second Anderson Aff. q 5. If true, plaintiff filed his

administrative claim within 300 days of obtaining actual

knowledge of his rights.* In short, whether defendant posted

notice and whether plaintiff was generally aware of his rights are

disputed issues that, on this motion, are construed in plaintiff's

favor. Kyllo v. Farmers Co-Op Co. of Wanamingo Minnesota, 723

F.Supp. 1332, 1336 (D.Minn. 1989). Thus, for the purposes of

this motion, the Court assumes that plaintiff’s administrative

charge was timely.

If the statute of limitations was tolled, the next issue is

whether the putative plaintiffs can piggy-back” their untimely

claims to plaintiff’s timely claim. The United States Courts of

Appeals are split on whether every member of the class must meet

the 300-day administrative filing deadline. The rule in the Eighth

Circuit is that putative plaintiffs need not personally comply with

the filing requirement if one plaintiff in the action has properly

filed an administrative charge. Kloos, 799 F.2d at 400. Accord

Mistretta v. Sandia Corporation, 639 F.2d 588, 593-94 (10th Cir.

1980); Bean v. Crocker National Bank, 600 F.2d 754, 759 (9th

Cir. 1979). Contra McCorstin v. United States Steel Corp., 621

F.2d 749, 755 (Sth Cir. 1980). However, the Eighth Circuit has

limited the ability of putative plaintiffs to “piggy-back” their

claims on a timely administrative charge of another plaintiff.

Because of the purposes behind the administrative filing

5. Plaintiff filed his administrative complaint on March 25, 1991, which was

within 300 days of any date in the fall of 1990.

13a

Appendix B

requirement, namely informal conciliation and a notice of

charges, other plaintiffs cannot raise claims that are far beyond

the scope of the timely administrative charge. Ulvin v.

Northwestern Nat. Life Ins. Co., 943 F.2d 862, 865 (8th Cir.

1991), cert. denied, 112 S.Ct. 970 (1992). In short, if plaintiff’s

claim is shown to have been timely, the putative plaintiffs may

“piggy-back” claims that arise out of the same general conduct

complained about in plaintiff’s administrative charge.

Il. “Similarly Situated”

Section 216 of the ADEA authorizes class actions to be

brought on behalf of “other employees similarly situated.” 29

U.S.C. § 216(b); see also 29 U.S.C. § 626(b). To satisfy the

“similarly situated” requirement plaintiff need not show that his

claims are identical to putative class members, only similar.

Riojas v. Seal Produce, Inc., 82 F.R.D. 613,616 (S.D.Tex. 1979).

“In general, however, courts appear to require nothing more than

substantial allegations that the putative class members were

together the victims of a single decision, policy, or plan infected

by discrimination.” Sperling v. Hoffmann-La Roche, Inc., 118

F.R.D. 392, 407 (D.N.J.), aff’d, 862 “— 439 (3d Cir. 1988),

aff'd, 110 S.Ct. 482 (1989).

Section 216 alters the general rule for the binding nature of

class action judgments. Under Federal Rule of Civil Procedure

23, putative plaintiffs must opt-out of the class or they will be

bound by the judgment. Fed.R.Civ.P. 23. Section 216(b),

however, provides for the opposite procedure: “No employee

shall be a party plaintiff to any such action unless he gives his

consent in writing to become such a party and such consent is

filed in the court in which such action is brought.” 29 U.S.C.

§ 216(b). Thus, the opt-out procedure of Rule 23 is wholly

>.

l4a

Appendix B

inapplicable to ADEA cases. Kloos v. Carter-Day Co., 799 F.2d

397, 400 (8th Cir. 1986).

Plaintiff argues that the Court should certify this lawsuit as a

class action because the putative plaintiffs are “similarly

situated.” Plaintiff asserts that all putative plaintiffs are similarly

situated because they were all over forty years old in 1990, all

were professional exempt employees within the Software

Engineering Division, a decision to layoff all but one putative

plaintiff was reached at the February 7, 1990 meeting, and all

were long-time employees of defendant. In regard to the lone

proposed plaintiff who was not laid off, James Schaenzer,

plaintiff claims that defendant purposely induced him to quit by

curtailing his authority and responsibilities. Finally, plaintiff

claims that all proposed plaintiffs are similarly situated because

they have been affected by the same pattern of conduct.

Defendant does not directly challenge plaintiff’s assertion

that the other putative plaintiffs are similarly situated as defined

by section 216. Instead, defendant offers three general arguments

in Opposition to certification. First, defendant argues that the

Supreme Court’s decision in Sperling impliedly imposed Rule

23’s limits on the Court’s authority to certify the class. Rule 23

allows a class action only if joinder is impracticable, there are

questions common to the class, the claims of the representative is

typical of the class, and the representative will adequately

represent the class. Defendant asserts that joinder is not

impracticable because there are only thirteen putative plaintiffs,

and that he is not an adequate representative of the class because

the statute of limitations for court filings (as opposed to

administrative filings) bars his claim. Second, defendant argues

that allegations alone are not sufficient to justify certification. In

support of this argument, defendant again asserts that the

15a

Appendix B

administrative filings were untimely and that the Court should

dispose of the case on that basis. Finally, defendant objects to the

inclusion of Schaenzer in the class. Schaenzer voluntarily

resigned but plaintiff claims that Schaenzer did so because

defendant was attempting to force him out by reducing his

authority and responsibilities. Defendant argues that Schaenzer

is not similarly situated and should not be included in the class.

Defendant further asserts that the allegations regarding

Schaenzer are hearsay because they are presented in an affidavit

of plaintiff’s counsel and not by way of an affidavit from

Schaenzer.®

The Court does not agree with defendant’s assertion that the

Supreme Court’s ruling in Hoffmann-La Roche Inc. v. Sperling,

110 S.Ct. 482 (1989), impliedly imposed the requirements of

Rule 23 on ADEA class actions.

In Sperling, the Supreme Court held that district courts have

discretion to facilitate notice in an ADEA class action. This

holding is discussed more fully infra. In reaching its holding,

however, the Court stated that district courts have “the requisite

6. Plaintiff asks the Court to include Schaenzer in the class based on the

following allegations in plaintiff s attorney’ s affidavit:

On June 6, 1992 while investigating Plaintiff's

claim, I talked to Jim Schaenzer. He told me that in

1990 he was assigned increasingly trivial work, had his

supervisory duties taken away, and was given a very

small office. He felt he was being targeted and

therefore quitting [sic].

Kempf Aff. { 36.

16a

Appendix B

procedural authority to manage the process of joining multiple

parties in a manner that is orderly, sensible, and not otherwise

contrary to statutory commands or the Provisions of the Federal

Rules of Civil Procedure.” 110 S.Ct. at 486 (emphasis added). At

least one court has concluded that through this passage the

Supreme Court impliedly imposed the requirements of Rule 23

on section 216 class actions. That court reached its conclusion

based on the following reasoning:

I cannot accept the extraordinary assertion

that an aggrieved party can file a complaint,

claiming to represent a class whose

preliminary scope is defined by him, and by

that act alone obtain a court order which

conditionally determines the parameters of

the potential class and requires discovery

concerning the members of that class. Before

I conditionally determine the’ scope of the

class, plaintiffs will need to satisfy me that

there exists a definable, manageable class and

that they are proper representatives of the

class. They will, in other words, need to show

that they satisfy the requirements of rule 23 or

convince me that a pafficular requirement is

inconsistent with 29 UAS.C.A. § 216(b).

Shushan y. Univ. of Colorado at Boulder, 132 F.R.D. 263, 268

(D.Colo. 1990).

The Court will not adopt Shushan’s interpretation of

Sperling for three reasons. First, the Shushan court appears to be

the only court in the country to conclude that Sperling impliedly

imposed the requirements of Rule 23 on ADEA actions. See, e.g.,

17a

Appendix B

Anson v. Univ. of Texas Health Science Center, 962 F.2d 539, 540

(Sth Cir. 1992); Church v. Consolidated Freightways. Inc., 137

F.R.D. 294 (N.D.Cal. 1991) (discussing Shushan at length but

rejecting its holding). Second, in an order issued after the

Sperling decision, another court in this district has stated that

“ADEA class actions are not governed by Federal Rule of Civil

Procedure 23.” Severtson v. Phillips Beverage Co., 137 F.R.D.

264, 265 (D.Minn. 1991), While it appears that the Severtson

court was not presented with the specific argument offered by

defendant, the case is strong persuasive authority that the rule in

this circuit continues to be that Rule 23 does not apply to section

216 actions despite the Sperling decision. See Schmidt v. Fuller

Brush Co., 527 F.2d 532, 536 (8th Cir. 1975). Third, the district

court in Sperling specifically held that “it is clear that the

maintenance of ADEA representative claims . . . is governed by

§ 216(b) and not Rule 23.” Sperling v. Hoffmann-La Roche. Inc.,

118 F.R.D. 392, 399 (D.N.J), aff'd, 862 F.2d 439 (3d Cir 1988),

aff'd, 110 S.Ct. 482 (1989). The Supreme Court did not expressly

challenge the district court’s assertion. Thus, the Court finds that

the general statement by the Supreme Court that district courts

have “the requisite procedural authority to manage the process of

joining multiple parties in a manner that is orderly, sensible, and

not otherwise contrary to statutory commands or the provisions

of the Federal Rules of Civil Procedure,” 110 S.Ct. at 486, should

not be read to incorporate the procedures of Rule 23 into section

216 actions. Church, 137 F.R.D. at 306.

The Court finds that the more appropriate conclusion is that

the Rule 23’s factors (commonality, typicality, numerosity, and

adequacy) are relevant to the Court’s analysis of whether the

putative plaintiffs are similarly situated, but that the Sperling

“was [not] intended to invoke, verbatim, the procedures of Rule

23 into all ADEA action [sic] brought under section 216(b).”

ee ee ee

18a

Appendix B

Church, 137 F.R.D. at 306. Thus, when conducting an analysis of

whether the putative plaintiffs are similarly situated, the Court

will consult Rule 23’s factors but not be bound by them.

Rule 23 allows a class action only if joinder is impracticable,

there are questions common to the class, the claims of the

representative is typical of the class, and the representative will

adequately represent the class. The parties seem to agree that the

commonality and typicality factors are present in the case at bar.

The parties disagree, however, as to whether the impracticability

and adequacy of representation factors justify certification of the

class.

Under Rule 23, the burden is on the plaintiff to show that

joinder is impracticable. Boyd v. Ozark Air Lines, Inc., 568 F.2d

50, 55 (8th Cir. 1977). The decision on whether joinder is

impracticable is within theCourt’s discretion and in making that

determination the Court should consider all the circumstances

surrounding the case. /d. In this case, plaintiff seeks to bring only

thirteen additional people into this lawsuit. While it is widely

recognized that the mere number in a class in not controlling on

the issue of impracticability of joinder, it is the most important

factor. Independent School Dist. No. 89 v. Bolain Equipment,

Inc., 90 F.R.D. 245, 247 (W.D.Okla. 1980). The Court believes

that the joinder of thirteen identified persons is not impracticable.

See e.g., Ewh v. Monarch Wine Co., Inc., 73 F.R.D. 131 (E.D.N.Y.

1977) (joinder of thirty-four to fifty not impracticable); Stoner v.

Ford, 390 F.Supp. 327 (N.D.Okla. 1974) (joinder of twenty-nine

not impracticable). The relatively small size of the class supports

a conclusion that joinder is the more appropriate procedural tool.

Before reaching this conclusion, however, the Court had to

consider a possible obstacle that might render joinder

impracticable. The Court was concerned that while piggy-

19a

Appendix B

backing untimely claims to timely claims is allowed in class

actions, it might not be allowed if the Court only joined the claims

and parties. Accordingly, the Court requested that the parties

submit additional briefs on this issue. “Every court of appeals that

has addgessed the issue has held. . . that plaintiffs who have not

timely filed a charge can rely on the timely charge of another

plaintiff in a class action or in a multiple plaintiff joint action.”

Anderson v. Montgomery Ward & Co. Inc., 852 F.2d 1008, 1017-

18 (7th Cir. 1988) (emphasis in original) (citations omitted). The

Eighth Circuit has addressed this issue in the Title VII context in

Allen v. Amalhamated Transit Union Local 788, 554 F.2d 876 (8th

Cir.), cert. denied, 434 U.S. 891 (1977). In Allen, thirteen black

union members filed suit against the union alleging racial

discrimination. The thirteen filed a single suit, but did not seek

class certification. The district court denied Title VII relief to ail

plaintiffs but two because only those two had filed charges with

the EEOC and the complaint did not allege a class action or seek

class relief. The Eighth Circuit found the district court had erred:

It is settled that a suit by anamed member of a

class in a class action may seek relief for the

entire class without the necessity of other

class members pursuing their administrative

remedy with the EEOC. In the instant case,

although no class action was filed, 13

additional plaintiffs alleged facts

demonstrating they were similarly situated

and had received the same discriminatory

treatment as [the two plaintiffs that filed

charges with the EEOC]. Under such

circumstances, particularly where the

discrimination is continuing it would be

nonsensical to require each of the plaintiffs to

20a

Appendix B

individually file administrative charges with

the EEOC.

Id. at 882-83 (citations omitted). See also Snell v. Suffolk County,

782 F.2d 1094, 1100-02 (2d Cir. 1986) (adopting single filing

rule); Jackson Seaboard Coast Line R. Co., 678 F.2d 992, 1011

(11th Cir. 1982) (“[I)n a multiple-plaintiff, non-class action suit,

if one plaintiff has filed a timely EEOC complaint as to that

plaintiff’s individual claim, the co-plaintiff with individual

claims arising out of similar discriminatory treatment in the same

time frame need not have satisfied the filing requirement.’’)

(quoting Allen v. United States Steel Corp., 665 F.2d 689, 695 (Sth

Cir. 1982)); Foster v. Gueory, 655 F.2d 1319, 1322-23 (D.C.Cir.

1981) (adopting single filing rule).

Finally, defendant’s argument that plaintiff is not an

adequate representative of the class is unpersuasive. The Court

has carefully reviewed the facts and the law and concludes that

plaintiff is an adequate representative of the class.

In short, the Court concludes that plaintiff has satisfied

section 216’s requirement that all putative plaintiffs be similarly

situated. Nevertheless, while Rule 23 does not strictly apply,

reference to Rule 23’s impracticability of joinder requirement is

relevant and appropriate. Given the fact that plaintiff seeks to join

thirteen specific persons, all but one of whom was laid off in 1990

from the Software Engineering Division, plaintiff has not

established that certification of the class is necessary to vindicate

the rights of individual class members, /n re General Motors

Corp. Engine Interchange Litigation, 594 F.2d 1106 (7th Cir.),

cert. denied, 444 U.S. 870 (1979), or will serve the interests of

judicial economy. Buford v. American Finance Co., 333 F.Supp.

1243 (D.Ga. 1971). The Court concludes that the more

2la

Appendix B

appropriate resolution is to deny the motion for class certification

but to allow the putative plaintiffs to join this action.’

Accordingly, based on the foregoing, and upon all the files,

records and proceedings herein,

IT IS ORDERED that:

1. plaintiff’s motion for class certification is denied; and

2. putative plaintiffs are authorized to join this action as

individually-named parties.

s/ Harry H. MacLaughlin

Judge Harry H. MacLaughlin

United States District Court

DATED: March 25, 1993

7. Because the Court will not certify the class, the Court need not address the

issue of what type of notice to the class would be appropriate. See Hoffmann-La

Roche Inc. v. Sperling, 110 S.Ct. 482, 486 (1989).

22a

APPENDIX C — ORDER OF THE UNITED STATES

DISTRICT COURT, DISTRICT OF MINNESOTA

FOURTH DIVISION FILED DECEMBER 1, 1993

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FOURTH DIVISION

CIVIL 4-92-138

Richard Anderson and Norris Nielsen,

Plaintiffs,

vi

UNISYS Corporation d/b/a Remington Rand Univac d/b/a

Sperry Univac d/b/a Sperry d/b/a Unisys d/b/a Paramax Systems,

Defendant.

ORDER

Douglas P. Kempf, Kempf & Kempf, 7801 East Bush Lake Road,

Suite 260, Bloomington, MN 55439-3112, for plaintiffs.

Thomas M. Sipkins, Joseph G. Schmitt, Popham, Haik,

Schnobrich, & Kaufman, Ltd., 3300 Piper Jaffray Tower, 222

South Ninth Street, Minneapolis, MN 55402, for defendant.

This matter is before the Court on defendant’s motion for

summary judgment. The Court finds that there are material

factual disputes which preclude summary judgment in this case.

23a

Appendix C

Accordingly, based on all of the files, records and

proceedings, and for the reasons stated from the bench at oral

argument,

IT IS ORDERED that defendant’s motion for summary

judgment is denied.

s/ Harry H. MacLaughlin

Judge Harry H. MacLaughlin

United States District Court

DATED: December 1, 1993