W. B. COKE, Jr., Plaintiff-Appellant, v. GENERAL ADJUSTMENT BUREAU, INC., Defendant-Appellee

by an employee years age. under 40 of GOLDBERG, Before FAY and ANDER- Shortly after the Coke notified SON, Judges. Circuit major an official of a client of GAB that he had been demoted and asked the official to GOLDBERG, Judge: seek his reinstatement. The official com- Age Under the Discrimination in Employ- plied request, with May, Coke’s and in [ADEA], ment Act of 1967 29 U.S.C.A. and on several other through occasions Au- (West 1975) (amended 1978), 621-34 an §§ gust, represented GAB to the official aggrieved may employee commence suit it would take corrective action to re- against age his employer for discrimination position. store Coke to his former After only upon filing a notice of intent to sue occasion, each the official informed Coke of Secretary days the of Labor within 180 representations. GAB’s after the occurrence the alleged unlawful appeal presents act.1 This two questions Allegedly relying on employer’s his state- about the meaning him, and nature of this ments of intent to reinstate Coke de- requirement. We are layed filing asked to determine notice of intent to sue under on what alleged date the unlawful the trig- however, act ADEA. In af- gering ter several months of inaction on the part ment occurs when an employer, following company, Coke concluded that GAB alleged an discriminatory misrepresented makes its intent to reinstate employee him. He will be filed notice of intent to sue with reinstated. We are also the Department asked to decide of Labor on or about De- 29, 1976, whether the notice requirement an cember abso- more than 240 days after jurisdictional lute prerequisite alleged to suit so demotion occurred but within it cannot be equitably days tolled when an time Coke claims he first employee’s delay filing alleged notice is due learned of GAB’s misrepresenta- reliance on his misrepresenta- tions.

tions that he will be reinstated. then against Coke commenced this action his employer. appeals He from the district

I. court’s summary judgment which held that 1, 1976, On Coke, or about May Jr., W. B. his by 626(d)(1) suit was barred 29 U.S.C. § by employer, informed his General Ad- because Secretary his notice to the of Labor justment Bureau, (GAB), Inc. that he was given his intent to sue was more than applicable provision pertinent 1. The Employment states in Discrimination Act Amend- 4(b), 95-256, ments of § Pub.L.No. prior Stat. may 189. Since No civil this suit was filed action be commenced an April individual the effective date under this section until of the amend- the individ- ment, given original provision ap- ual has of the ADEA [of Labor] sixty days’ plies. amended, 626(d)(1) provides: less than notice of an As intent to file now such action. Such No notice shall be filed— civil action be commenced (1) eighty days days [W]ithin one hundred and individual under this section until 60 alleged practice after the charge alleging unlawful occurred after a unlawful discrimina- Secretary. tion has been filed with the Such 626(d)(1) (West 1975) (amended 29 U.S.C.A. § charge shall be filed— 1978). (1) days alleged [W]ithin after the un- 1978, Congress amended this section of practice lawful occurred . applicable but the amendment 626(d)(1) (West Supp. 29 U.S.C.A. § Age to suits filed after its effective date. leged unlawful does not after violation oc- render days occurrence curred.

any less certain. directly ADEA cases Although we find no II. point, Supreme on Court addressed the district court Appellant claims in of Title a related situation the context summary judgment erred in on granting 1964, Rights Act of VII of the Civil ground the that his suit was time-barred (West 1974).2 2000e-2000e-17 U.S.C.A. §§ argues that no- Appellant his § Workers Local 790 v. Robbins Electrical timely 180-day period tice was because the 229, 441, Inc., Myers, 97 S.Ct. & run until begin August, did not (1976), employee and her L.Ed.2d 427 reasonably when he first concluded that his complaint that her filed with union asserted employer unequivocably finally had de- Equal Employment Opportunity the Com- Alternatively, appellant moted him. con- mission was because the date on 180-dayperiod begin tends that if the did employment the unlawful alleged which 1, 1976,the he May day run from received occurred was not the date of her 180-day formal notice of the the date on which discharge but rather requirement equitably should grievance-arbitration procedures conducted filing tolled or modified because his pursuant bargaining agree- to a collective misrepresen- was caused his ment Petitioners as- had been concluded. tations. discharge only serted that the was “tenta- tive” until the later date. and “non-final” A. DATE OCCURRENCE OF AL- OF Supreme Id. at at 446. The LEGED UNLAWFUL PRACTICE flatly rejected this contention Court be- accept appellant’s evident, We cannot contention parties cause it was and the understood, notifying employee time for had been stopped fired as of the earlier date: “She Secretary of Labor of his intent to sue receiving pay work and ceased and benefits August, not to run until begin did Similarly even as of that date.” Id. appellant reasonably time claims he first anticipated have rein- Coke “unequiv- concluded that the demotion was statement, obvious, and indeed it is in his Appellant ocal and final.” concedes concedes, lant that he was demoted on or or complaint that he was demoted on about of that date he May about 1976: As time, At that he May 1976. did higher status and working ceased at the receive formal notice of his demotion but he higher paying position. unequivocably demoted: he immediate- ly position began assumed the new has not claimed that at appellant Because receiving pay. reduced We fail to see how the he was unaware time of his demotion possibility of reinstatement can alter date of his demotion either of the effective alleged the date of occurrence of the unlaw- discriminatory motivations behind or of the act, ful uncertainty over whether an his reliance on two of our In Reeb v. employer steps remedy previous misplaced. will take an al- decisions is similarity recognized applicable The notice 2. This to Title VII e, see, VII, g., Hodg- claimants is set forth in 42 2000e- tween the ADEA and Title U.S.C.A. 5(e) (West 1974), pertinent Savings provides in son v. First Federal & Loan Associa- which Fla., County, tion Broward 1972), charge comparability under this section shall be filed and the their A days filing provisions acknowledged eighty after the within one has often been hundred and employment determining unlawful oc- the timeliness of a claim brought charge (including pursuant curred and notice of the to either Act. Co., date, Templeton Telegraph place v. Western Union and circumstances 1979); employment practice) shall be 607 F.2d 89 v. Sun Marshall Oil 1979); Chappell upon person against served whom such days charge Emco is made within ten thereafter Machine Works Atlanta, Opportunity Economic appellant 516 unlawful act of which complains (1976), Univac, we held that the Title VII Wagner Sperry occurred. Cf. begin does not to run Sperry Div. of Rand knew employee until or should have (E.D.Penn.1978) (employee’s uncertain- known of the facts that would ty over rehiring prevent did not charge of discrimination. Id. at 931. As- 180-day period running). from suming arguendo the same standard cases, EQUITABLE

applies in ADEA B. Charlier v. C. TOLLING OF THE S. Son, Inc., REQUIREMENT Johnson & NOTICE relevance, we do not see its for appel- Because filed his notice of lant does not contend that he failed to learn intent sue with the of Labor age had been the more than 180 days after the date of the Rather, reason behind his demotion. act, alleged unlawful his suit is time-barred lant simply contends that he did not know unless requirement subject the notice is to August that his employer would not equitable modification. This Circuit has remedy previous alleged unlawful act. never decided whether the 180-day filing The equitably second case on which can be relies modified. We have is Products, Inc., repeatedly pretermitted Clark v. West Chemical the issue or held (5th equities strong 1155 Cir. not enough in which we to warrant held that summary judgment modification even assuming it been in- could be correctly granted done. Templeton because there was a See v. Western genu- Union Co., ine factual Telegraph issue as to (5th 1979) when an 607 F.2d 89 Cir. discharge, (facts triggering did not justify tolling even if availa ble); Quina ADEA notice period, had v. Owens-Corning Fiberglas occurred. The date of (5th occurrence 575 dispute 1978) was in F.2d 1115 (igno Cir. cause employee, after receiving rights rance of ADEA oral no- insufficient to justify tice of discharge, tolling available); nevertheless even if apparently Thomas v. E. I. for, continued to work Co., and receive DuPont de sales Nemours & 574 F.2d 1324 from, commissions his employer 1978) (trial until he court instructed to received a written notice of termination. decide issue on only remand if necessary); stated, As we have previously here Adams v. Signal Corp., there Federal 559 F.2d 433 ambiguity no operative 1977) (facts as to the date did justify tolling 1, demotion since on or even May available); about if Charlier v. S. C. Johnson 1976, appellant Son, Inc., received formal & notification 1977) (trial immediately began work- court instructed to decide issue on ing job at the lower status remand immediately only necessary); if Edwards v. Kai began receiving a Sales, reduction in ser Aluminum pay. Thus & Chemical 515 Clark is not 1975) relevant to the issue before us. (tolling issue ex pressly pretermitted); Powell v. Southwest We therefore hold that when an em ern Telephone Bell ployee, at the time of has knowl 1974) (equities insufficient justify to edge both of the effective date of the demo available). even if Because we con tion and the facts that would reasonably clude equities may here be strong lead him to conclude that the demotion was enough require to tolling of the peri notice based, diseriminatorily the statutory od, 789, p. infra, we address ques period begins to run from the effective date tion of equitable whether tolling of the and an employee’s uncertainty over wheth notice requirement possible. er his employer will reinstate him does not alter the date of occurrence of begin We by noting that our fre Here, unlawful act. the statutory notice quent requirement characterization of the period began to 1, run on or May about “jurisdictional” does not foreclose our 1976, since that is the time the alleged inquiry. We have often stated that

789 adjudicate equities whether indi- court to jurisdictional pre is a suit, in the next breath should be requisite yet jurisdictional to cate that the defect power have the that we Works ignored.” Chappell intimated v. Emco 601 See, g., modify requirement. toll or (5th Cir. both F.2d 1298 1118; Clark, at su Quina, supra, 575 F.2d Chappell, Reeb and we concluded 765; Edwards, 515 at pra, 556 F.2d of Title VIPs confusing characterization no- 1200; Powell, supra, 494 F.2d F.2d at “jurisdictional” tice did not requirements as leaving a crack in Obviously, by at 489-90. inquiry foreclose into whether the equitable modification the door for subject ments were modifica- we have not been requirement, of the notice tion. using “jurisdiction” in the strictest sense same conclusion here We reach the term, doctrines cannot be require ADEA notice in the context of the upon a federal utilized to confer by any rose other name Although ment. Casualty Fire court. e. American & sweet, prerequisite to suit may smell as Finn, 95 Co. v. 341 U.S. S.Ct. name leads by any jurisdictional Mansfield, (1951); Coldwater & L.Ed. 702 consequences confusion when the of that Swan, Michigan Ry. Lake U.S. We explained. nomen are not therefore (1884); City L.Ed. of whether the notice question turn to the Green, (5th Cir.), cert. Stuart even requirement of the denied, 58 S.Ct. L.Ed. subject “jurisdictional,” labelled Rather, (1937). the notice table modification. only in the “jurisdictional” can be said to be with the re compliance broad sense that We far for our answer. need not look to suit. quirement precondition is a VII the ADEA and Title share the Since employ- of elimination of problem purpose a similar in the common We have faced provi- notice context of Title VII’s time limitations. In ment discrimination and their Atlanta, identical, construc- Opportunity virtually Reeb Economic sions are 1975), Judge 924 provisions particu- Title VIPs are tions of explained: Wisdom their ADEA larly germane interpreting to 2, supra; see also counterparts. See n. springs confusion from a [Conceptual Evans, 441 ninety day require- Mayer Oscar & Co. v. U.S. describing court’s proceeding 2066, 2071, (1979). but 609 “jurisdictional” ment as 99 60 L.Ed.2d S.Ct. analogy on the basis of an to how stat- recently held that the notice We VII, 2000e-5(e), utes of limitations have been construed. 42 ment of Title U.S.C.A. § limitations, designed they of as Statutes 180-day identical to the which is almost claims, primarily prevent are to stale are ADEA, subject is thought subject to be to traditionally Emco equitable tolling. Chappell to See construction than much more flexible Works Machine subject jur- matter statutes which confer thorough 1979). Following analysis a of example, upon courts. For isdiction precedent, Supreme Court and Fifth Circuit party may that a waive many courts hold equitable we considerations concluded n limitations, the defense of the statute of circumstances, can, the time in some toll insist that a lack virtually but all courts 2000e-5(e). Id. at 1301-2. period of § never subject jurisdiction may matter of be waived and must be invoked no reason to perceive Because we parties if the fail to raise it. court itself 180-day provision treat practically iden differently ADEA than the Judge recently F.2d at 927. Clark also 516 VII, we conclude provision tical in Title lamented, designate a illogical “[i]t sub period of the ADEA is to the court’s the notice particular necessary fact as Accord, absence, tolling.3 Nielson ject equitable jurisdiction, yet, in its allow highly Congressional rele- brought of intent should after the effective date 3. For suits previously interpreting statements vant in As the 1978 amendments to 790 Electric, and, 603 require tolling,

v. Western sufficient to according- 1979); v. Institute of Gas Technol Kephart ly, conclude that the district court erred in 1978); 1287 ogy, 581 F.2d Bonham granting summary judgment. Industries, Inc., (3rd v. Dresser Perhaps in no circumstance denied, Cir.), cert. 431 99 U.S. S.Ct. justi table of a time limitation more (1978); 58 L.Ed.2d 113 Dartt v. Shell Oil defendant, through fied than where a mis aff’d conduct, leading plaintiff has induced a court, an divided equally U.S. until the suit limitations (1977); S.Ct. 54 L.Ed.2d Abbott v. Brooklyn run.4 e. Glus v. East Forms, Inc., Moore Business Terminal, 231, 232, ern District U.S. Indeed, (D.N.H.1977). though our con (1959). S.Ct. 3 L.Ed.2d 770 Al cept is of ancient vintage, objectives 180-day one of the variety in its finest attains a cold and notice requirement give of the ADEA is to sparkling purity, we find that the vintners employer early notice of litiga sought lighter of this varietal have bou tion, Powell, 494 F.2d at quet. In order to treat this Act’s notice promoting fairness to hardly defendants is provision purely jurisdictional, we would justification barring for employee’s have to assume that our vintners an desired grapes of wrath the aging process. We suit when the failure to file notice is assumption. believe, cannot make this We due to the employer’s deception. An em rather, they compassion intended ployer misrepresents who its intent to rem realism to ingredients. be essential A total edy ex should abjuration tolling would too pect aggrieved employee that the will often go make this fine wine bad. filing suit reliance on the promise will be corrected.5 2. Having determined that the notice circumstances, such maxim that “no subject of the ADEA is man advantage take of his own we tolling, now address Glus, wrong,” supra, 359 at lant’s contention that the district court at requires granting summary judgment erred in no period cause tice be tolled until the the facts here warrant time the em tolling of the ployee period August, until 1976. We con- discovered or should have discovered clude that misrepresentations there are at least material employer facts that which, established, in dispute if would be induced him to suit.6 Cf. Ott v. Because 4. stated, quiring explains intent mittee time H.R.Rep. min.News, ally action under the ADEA and that therefore table modification for Labor. See n. do not address the hood of made, which, fide Compare 12, reprinted jurisdictional prerequisite misrepresented its intent period to sue” be filed with the report accompanying Congress for some future appropriate Bonham v. Dresser No. misrepresentations pp. will a in “charge” 95-950, 1, supra. reinstatement, be available to ^[1978] “charge” requirement amended reason, question has when the failing 95th rather U.S.Code 534. The conference com to such were not Cong., of whether to rehire Industries, to file within the than 626(d)(1) by the amendment but rather bona plaintiffs as to the likeli- maintaining that GAB actu- employer Cong. a “notice of 2d Sess. likelihood, fulfilled. him, “is not . & Ad . we re 6. 5. The fact that GAB Although tions. See Title ciple underlying or should have known the facts that would We have allowed tolling rise to his be] could have foreseen that the third directly misrepresentations convey the statements Sperry with 1978). unfair to allow a defendant justifying tolling any VII’s notice Chappell, Wagner 180-day period is available to Rand to Coke is immaterial one of these three the instant facts do not Chappell, supra, Title Corp., we VII Sperry to a third recognized claim because “it [would holding actually in until the claimant knew suspend to Coke. in the commencement in one of the situations. Univac Division of at least three situa- situations, 601 F.2d at 1302-3. here is similar to party made the to conceal facts provided comport fully party rather than (E.D.Penn. would prin- GAB give Midland Ross 523 F.2d Airways, 1978). 1975) (applying similar rule to Chappell, As I stated in 601 F.2d at three-year the ADEA’s statute of limita- a jurisdictional prerequisite notice is violations). tions for willful and considerations are irrelevant. Judge McArthur, Rubin’s dissent in Summary judgment should not be F.2d at granted genuine particularly helpful if there is a issue as in under- any standing precisely material fact. Irwin what the majority v. United held. States, I perplexed by 558 F.2d continue to be panels of our The moving party ignoring burden is on the court controlling precedent. estab this lish slightest that “there is ‘not the doubt as discussing “equities” Without of at- to the facts and that legal conclu tempting rely upon employer what an ” sion remains . . . Clark v. West alleged to have told having a client after Products, Inc., 1155, 1157 Chemical been demoted and reduced in salary, I 1977). Appellant presented affida summary judgment would affirm the based vits to the district court in of his upon lack of for failure to file a claim misrepresented that GAB its intent to timely under U.S.C. § him, reinstate that he reasonably relied thereon, that he first reasonably discov

ered that had misrepresented GAB its in GAB,

tent in August, 1976. Since the mov

ing party, only by way gen countered of a denial,

eral GAB did not shoulder its burden

of showing that there were no genuine is which,

sues of fact if in resolved favor of appellant, require would tolling of the 180- COOK, C. R. “Jake” T. W. Cook and Lee day DeForke, Plaintiffs-Appellants, Accordingly, we reverse the summary judgment of the district court and remand POST, Ralph Williams, The HOUSTON proceedings further consistent with our Perino, Joseph Terry Marvin Kent and opinion. Collins, Defendants-Appellees. REVERSED AND REMANDED. No. 78-1342. FAY, Judge, concurring part in Appeals, United Court of States dissenting Fifth Circuit. respectfully, Most concurring while 7,May parts majority I and II A of the opinion, I part dissent from II B and the reversal of

the summary judgment entered the dis-

trict court. agree

I Judge Goldberg that there is

“no reason to provi- treat the

sion of the ADEA differently than the prac-

tically identical provision Title VII” and

consequently this case is controlled

en banc opinion in McArthur v. Southern plaintiffs by falsely representing cause of action and suit rely then on the statute of limitations to bar it would correct unlawful act and duly diligent plaintiff rely the suit when a was un- then to on the time when to bar suit 1303; plaintiff able to discover those facts.” Id. at a conscientious was unable to discover Reeb, supra Similarly, at 930. it here would be were false. plaintiff unfair to allow a defendant to induce a

Case Details

Case Name: W. B. COKE, Jr., Plaintiff-Appellant, v. GENERAL ADJUSTMENT BUREAU, INC., Defendant-Appellee

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 7, 1980

Citation: 616 F.2d 785

Docket Number: 77-2874

Court Abbreviation: 5th Cir.