Deborah A. LAWRENCE, Appellant, v. COOPER COMMUNITIES, INC., Appellee, Equal Employment Opportunity Commission, Amicus Curiae.
No. 97-1338
United States Court of Appeals, Eighth Circuit
Submitted Sept. 11, 1997. Decided Jan. 6, 1998.
II. Age discrimination
An age discrimination claim requires proof that the employer intentionally discriminated against an employee over the age of forty on account of his age. See
In this case, Kempcke discovered an Upgrade Plan recommending elimination of fifteen division manager positions. The Plan noted that the fifteen were over age forty and predicted that five would complain of age discrimination if outplaced. Kempcke complained that the Plan reflected age discrimination, first to Plan author Garrison and then to supervisor Schafbuch. Rather than provide an explanation, Schafbuch responded with a peremptory demand that Kempcke return the documents or be fired for insubordination, even though Schafbuch knew that Kempcke had given the documents to his attorney.
If there was no more to the incident than that, a reasonable factfinder could conclude that Monsanto‘s action in firing Kempcke for giving innocently acquired documents to his attorney, rather than returning them himself, was such an extreme overreaction as to be pretextual, that is, “unworthy of credence.” And if Monsanto‘s reason for firing was pretextual, that tends to support the inference that the Upgrade Plan was in fact a plan to terminate Kempcke and others on account of their ages. In these circumstances, we conclude on the record before us that Kempcke presented sufficient evidence to avoid summary judgment dismissing his age discrimination claim. See generally Ryther v. KARE 11, 108 F.3d 832, 836-38 (8th Cir.1997), cert. denied, U.S., 117 S.Ct. 2510, 138 L.Ed.2d 1013 (1997); Rothmeier, 85 F.3d at 1332.
For the foregoing reasons, the judgment of the district court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
FAGG, Circuit Judge, dissenting.
Kempcke was fired because he took his employer‘s documents and refused to give them back. I believe there is a big difference between out-and-out insubordination and protecting one‘s civil rights when age discrimination is afoot in the workplace. Although unintended, the court‘s decision not only opens up another avenue of on-the-job mischief but puts employers in a position where they can‘t do anything about it. I would affirm the district court.
Carolyn Brack Witherspoon, Little Rock, AR, argued, for appellee.
Paul Bogas, Washington, DC, argued, for amicus curiae EEOC.
Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON and BEAM, Circuit Judges.
FLOYD R. GIBSON, Circuit Judge.
Deborah A. Lawrence appeals from a final order entered in the United States District Court for the Western District of Arkansas granting summary judgment in favor of Cooper Communities, Inc. (“Cooper“) on her claim of sex discrimination under
I. BACKGROUND
Lawrence worked as an accountant for Cooper from 1989 until she resigned on January 27, 1995. In her Title VII action, Lawrence alleges that Cooper discriminated against her on the basis of sex by paying her less than a similarly situated male accountant, Ken Willsey; denying her vacation time that was made available to other male employees; subjecting her to a hostile work environment caused by her supervisor, Carl Lange; and denying her certain continuing educational opportunities, promotions, and club benefits.
[i]nformation provided on this form will be used by [EEOC] employees to determine the existence of facts relevant to a decision as to whether the [EEOC] has jurisdiction over potential charges, complaints or allegations of employment discrimination and to provide such pre-charge filing counseling as is appropriate.
Id. The EEOC received the CIF by mail on June 19, 1995—172 days after the date that Lawrence alleges that the last act of discrimination occurred and within the 180-day charge filing period.1 Although Cooper never received a copy of the CIF, on August 1, 1995, the EEOC informed Cooper that an “unperfected charge” had been filed and that the EEOC would mail a copy of the perfected charge when EEOC completed the formal writing of the charge. Id. at 19.
EEOC personnel prepared a charge of discrimination and forwarded it by letter dated September 1, 1995 to Lawrence for her to review and sign. At the time the EEOC mailed the charge to Lawrence, the 180-day charge filing period had lapsed. Lawrence made two corrections to the form—she corrected an erroneous date and checked sex discrimination as a cause of discrimination in addition to her initial Equal Pay Act charge.2 Lawrence, under penalty of perjury, signed and dated the form on September 13, 1995. On September 18, 1995, the EEOC received Lawrence‘s formal charge and mailed Cooper a copy of the charge on September 20, 1995.
On August 8, 1996, following the receipt of her right to sue letter, Lawrence filed this action alleging sex discrimination in violation of Title VII. Cooper moved to dismiss or, alternatively, for summary judgment arguing that the claim was barred because of Lawrence‘s failure to file a charge within 180 days of the alleged discrimination. On December 30, 1996, the district court granted summary judgment in favor of Cooper based on its conclusion that Lawrence had not filed a timely charge. The district court reasoned that Lawrence‘s CIF did not constitute a “charge,” and Lawrence failed to file a perfected charge until after the charge filing period had lapsed. In reaching this decision, the district court relied upon Diez v. Minnesota Mining and Mfg. Co., 88 F.3d 672, 675 (8th Cir.1996) and Hodges v. Northwest Airlines, Inc., 990 F.2d 1030, 1032 (8th Cir.1993) in which this court stated that an unverified intake questionnaire could not serve as an administrative charge under the Age Discrimination in Employment Act (“ADEA“) or Title VII. In addition, the district court found that Lawrence failed to present sufficient evidence of waiver, estoppel, or equitable tolling. As such, Lawrence appeals this order.
II. DISCUSSION
We review de novo a grant of summary judgment. The standard we apply is the same as the district court applied: whether the record shows that no genuine issue as to any material fact exists and that the moving party is entitled to judgment as a matter of law. See Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1331 (8th Cir.1996);
On appeal, Lawrence3 first argues that the district court erred in granting summary judgment against her by ruling that her CIF did not constitute a charge of discrimination and that Lawrence, therefore, failed to file a timely charge of discrimination. Lawrence contends that
a charge is sufficient when the [EEOC] receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of. A charge may be amended to cure technical defects including failure to verify the charge.... Such amendments will relate back to the date the charge was first received.
Because Hodges and Diez foreclose such arguments, we disagree. In a Title VII case, we previously held that an intake questionnaire that was not submitted under oath “did not constitute a valid charge under Title VII for purposes of the statute of limitations” until it was later signed under oath. Hodges, 990 F.2d at 1032. After considering the effect of
Because Lawrence‘s CIF does not constitute a “charge,” we further conclude that
Lawrence next argues that the district court erred in refusing to apply the doctrine of equitable tolling because, in the event that Lawrence‘s charge was not timely filed, equitable tolling works to preserve her claim as she acted reasonably in following the EEOC‘s instructions that were based on the agency‘s understanding of the charge filing procedures.
On the other hand, Cooper agrees with the district court‘s opinion that Lawrence did not establish sufficient facts to show that equitable tolling should apply. Cooper contends that Lawrence has presented no evidence that she was unaware of federal discrimination law and that Lawrence, in fact, previously received assistance from an attorney regarding the alleged discrimination. Cooper asserts that equitable tolling is precluded once it is shown that the employee was generally aware of her rights. See Miller v. Runyon, 32 F.3d 386, 389 (8th Cir.1994). In addition, Cooper argues that a mutual misunderstanding on the part of Lawrence and the EEOC does not justify equitable tolling and our discussion addresses these arguments simultaneously.
The filing of a timely charge with the EEOC is not a jurisdictional prerequisite to a suit in federal court. Rather, it is a condition precedent and, “like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines, 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982). “It is clear that equitable tolling is premised on the plaintiff‘s excusable neglect, which may or may not be attributable to the defendant.” Anderson v. Unisys Corp., 47 F.3d 302, 306 (8th Cir.), cert. denied, U.S., 116 S.Ct. 299, 133 L.Ed.2d 205 (1995); see also Dring, 58 F.3d at 1329 (“[E]xcusable ignorance may provide the basis for the proper invocation of the doctrine of equitable tolling.“).
In Anderson, this court considered the argument, based on Runyon, that implied that only employer misconduct justifies equitable tolling. We noted that Runyon and the cases it relied upon were limited to the context of the facts presented. See Anderson, 47 F.3d at 306. In those cases, the plaintiff claimed that the employer failed to post information regarding employees’ rights under the civil rights statutes. This court held that “[e]quitable tolling is permissible in other situations as well.” Id. Furthermore, we noted that an affirmative misrepresentation is not a requisite to applying equitable tolling because “ambiguous and misleading language” could also “lead a reasonable person to believe” that the steps that were taken would activate the Title VII process. Id. at 307.
After a careful review of the record, we find, in the present case, that Lawrence‘s failure to file a timely charge was excusable neglect because the following circumstances are sufficiently misleading to cause a reasonable person to believe that such steps would activate the Title VII process. First, Lawrence stated that “at all times relevant to my filing my complaint with E.E.O.C. I was operating under instructions given to me by E.E.O.C.[, and] ... I continued to provide information to E.E.O.C. as it was requested.” Appellant‘s App. at 87-88. The fair inference from this statement is that the EEOC told Lawrence to adhere to the following format. Because the EEOC received Lawrence‘s CIF on June 15, 1995 (eight days before the 180-day filing period would expire), the EEOC applied a special procedure4 and treated Lawrence‘s CIF as a charge, assigning a charge number and giving Cooper notice on August 1, 1995 that a charge had been received. See id. at 19.
Second, the EEOC failed to complete the formal charge form and obtain Lawrence‘s verification until after the 180-day period expired. The EEOC believed that, pursuant to
In sum, Lawrence‘s failure to file a timely charge arose from the EEOC‘s misconduct which is a circumstance beyond Lawrence‘s control and constitutes excusable neglect for Lawrence‘s failure to file a timely charge. Based upon the EEOC‘s instructions and its interpretation of the charge filing procedures, Lawrence reasonably believed that she had taken all of the required steps to activate the Title VII statutory machinery. As such, we find sufficient evidence to equitably toll the statute of limitations period.
III. CONCLUSION
For the reasons stated in this opinion, we reverse the district court‘s grant of summary judgment in favor of Cooper and remand for further proceedings.
FLOYD R. GIBSON
UNITED STATES CIRCUIT JUDGE