# Opposition Brief — Unisys Corp. v. Anderson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 913

## Text

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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
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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

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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:

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2092%3A2. Public record. Not legal advice.