Hawkins v. Frank Gillman Pontiac

102 F. App'x 394
CourtCourt of Appeals for the Fifth Circuit
DecidedJune 25, 2004
Docket03-20281
StatusUnpublished
Cited by5 cases

This text of 102 F. App'x 394 (Hawkins v. Frank Gillman Pontiac) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hawkins v. Frank Gillman Pontiac, 102 F. App'x 394 (5th Cir. 2004).

Opinion

PER CURIAM: *

Plaintiff-Appellant Ervin E. Hawkins brought this action against his former employer, Frank Gillman Pontiac, Gillman Ltd., and the Gillman Companies (“Gillman Pontiac”) alleging age discrimination under the Age Discrimination in Employment Act of 1967 (“ADEA”) 1 and intentional infliction of emotional distress (“IIED”) *396 under Texas state law. The district court found that both claims were barred by the statute of limitations and granted summary judgment in Gillman Pontiac’s favor. We REVERSE the district court’s grant of summary judgment for Gillman Pontiac on Hawkins’s ADEA claim. But we AFFIRM summary judgment for Gillman Pontiac as to Hawkins’s Texas state law IIED claim.

BACKGROUND

For summary judgment purposes, we review the depositions, affidavits, and documents in the record in the light most favorable to Hawkins, the non-movant. 2 Applying that standard, the following facts reasonably may be found or inferred from the record.

Hawkins joined Gillman Pontiac as an employee in 1964. He was promoted to a sales manager position in 1968. In June 1992, Hawkins was approached by one of his supervisors who offered Hawkins a mandatory transfer to the position of “fleet sales manager.” Although Hawkins did little to investigate the fleet sales manager position, based on his 20 years’ experience with Gillman Pontiac, he believed that the transfer would be a demotion. Gillman Pontiac disputes that the offered transfer was a demotion, but it is undisputed that the compensation for the new position would have been solely commission-based whereas Hawkins’s existing sales manager position was compensated on a salary plus commission basis.

The transfer Gillman Pontiac offered to Hawkins was mandatory. In both his deposition and affidavit testimony, Hawkins testified that when he asked why he could not stay in his position as a sales manager, Hawkins’s direct supervisor told him that Gillman Pontiac wanted “new blood” in the sales manager position. According to Hawkins, when Hawkins asked his supervisor what the “new blood” comment meant, the supervisor clarified the comment by stating, “you know, younger people.” Hawkins decided to decline the mandatory transfer and ceased working at Gillman Pontiac.

In June of 1993, nearly a year after Hawkins ended his employment with Gill-man, Hawkins filed a charge of age discrimination with the Equal Employment Opportunity Commission (“EEOC”). Hawkins engaged counsel, Phyllis Finger, to represent him before the EEOC. Accordingly, Finger directed the EEOC to keep her apprised of the developments in Hawkins’s case.

The EEOC administrative file, which was attached to Gillman Pontiac’s motion for summary judgment, reflects no activity on Hawkins’s discrimination charge between August 1994 and August 1998. During that time, Finger closed her law practice and changed her mailing address. Finger’s affidavit states that she duly informed the EEOC of the closure of her legal practice and her new mailing address. The EEOC file, however, is devoid of any annotations or documentation corroborating Finger’s testimony.

In September of 1998, the EEOC issued a Dismissal and Notice of Rights (“right-to-sue”) letter, which was mailed but returned undelivered. The right-to-sue letter itself is correctly addressed to Hawkins and marked with certified mail number Z 062 781 349. But an empty window envelope in the EEOC file with the right-to-sue letter did not indicate to whom the letter had been mailed. The envelope is post *397 marked, dated, and has the certified mail label attached. The certified mail receipt bears a handwritten note suggesting that the right-to-sue letter was to be sent to Finger. The right-to-sue letter was returned to the EEOC undelivered and stamped “Forwarding Order Has Expired.”

Hawkins’s mailing address in September of 1998 was the same address he had when he filed his charge of discrimination with the EEOC. Hawkins was not traveling in September of 1998, and Hawkins did not recall having any trouble with his mail during that period. Additionally, Hawkins did not receive the September 1998 right-to-sue letter until it was handed to him on October 16, 2001 when Hawkins went to the EEOC office with his current counsel.

On January 10, 2002, within 90 days of his October 16, 2001 receipt of the September 1998 right-to-sue letter, Hawkins filed suit in federal district court claiming that: (1) he was constructively discharged due to his age when Gillman Pontiac made the non-optional transfer offer; and (2)the constructive discharge resulted in emotional distress because he was angered and embarrassed due to the loss of his longtime position with Gillman Pontiac.

Gillman Pontiac moved for summary judgment on both claims. The district court granted summary judgment concluding that both claims were time-barred because: (1) the ADEA claim was not filed within 90 days of the date that the EEOC mailed the right-to-sue letter; and (2) the EEOC proceedings did not toll the two year statute of limitations applicable to IIED claims under Texas state law. Hawkins timely appealed.

ANALYSIS

We review the district court’s grant of summary judgment de novo, applying the same criteria used by the district court. 3 Summary judgment is only proper if the movant can show that there is no genuine dispute as to any material issue of fact and that he is entitled to judgment as a matter of law. 4 Moreover, we may sustain a district court’s grant of summary judgment “on any ground supported by the record, even if it is different from that relied on by the district court.” 5

I. Plaintiffs ADEA claim

In order to file an age discrimination suit under the ADEA, a plaintiff must first file an administrative charge with the EEOC. 6 The time period for filing suit under the ADEA is no earlier than 60 days after a charge is filed and no later than 90 days after receiving a right-to-sue letter from the EEOC. 7 Thus, an ADEA plaintiff need not wait on a right-to-sue letter to be issued by the EEOC before he files suit. 8 But if the plaintiff waits until the EEOC issues a right-to-sue letter, the 90-day filing requirement in ADEA is treated as a statute of limitations, and it is subject to tolling and waiver. 9 We have held that delivery of a right-to-sue letter to the ad *398 dress designated by the plaintiff suffices to start the 90-day filing period unless: (1) the plaintiff, through no fault of his own, failed to receive the letter or; (2) the statute should be tolled for some other equitable reason until the plaintiff actually received notice. 10

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102 F. App'x 394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hawkins-v-frank-gillman-pontiac-ca5-2004.