Jakob UNTERREINER, Plaintiff-Appellant, v. VOLKSWAGEN OF AMERICA, INCORPORATED, Defendant-Appellee

8 F.3d 1206, 1993 WL 449730

• Court: Court of Appeals for the Seventh Circuit
• Decided: December 15, 1993
• Docket: 92-1921
• Status: Published

Opinions

MANION, Circuit Judge.

Volkswagen of America, Inc. terminated Jakob Unterreiner from his position as District Service Manager for the company, effective June 30,1988. Almost one year later, on June 23, 1989, Unterreiner filed a charge with the Illinois Department of Human Rights (IDHR), claiming that he was terminated because of his age. The IDHR cross-filed that charge with the Equal Employment Opportunity Commission (EEOC). Both the IDHR and the EEOC dismissed Unterreiner’s claim because he failed to file his charge within the 300-day statutory limitation period. See 29 U.S.C. § 626(d)(2). He then filed suit in district court, contending that his compliance with the limitations period should be excused on equitable grounds. The district court disagreed, judging Unterreiner’s claim untimely as a matter of law. Unter-reiner appeals and we affirm.

I. Facts

Volkswagen, a company engaged in the sale and service of automobiles, separates its service enterprise in the United States into territorial regions and subdivides the regions into districts. The Chicago region was subdivided into seven districts. Beginning on April 20, 1981, Unterreiner served as the District Service Manager for one of the districts within the Chicago region. His job required him to visit the several Volkswagen dealerships in his district and to complete reports and other paperwork.

As part of his job, Unterreiner reported to the Chicago region’s headquarters located in-Lincolnshire, Illinois about once a week. While there, he spent most of his time at the service department which was located on the second floor. The first floor included a common area for all employees, consisting of a cafeteria, a training center, and a conference room. An employees’ bulletin board was located next to the entrance of the conference room and immediately across from the entrance to the cafeteria. Volkswagen claims that in 1984 it posted an EEOC notice of employment rights on that bulletin board. According to Volkswagen, that notice set forth the employees’ rights under the Age Discrimination in Employment Act (ADEA).

Volkswagen reorganized in late 1987 and reduced from seven to six the number of service districts in the Chicago region. Volkswagen informed Unterreiner on June 13, 1988 that he would be terminated effective June 30,1988 because of the reorganization. Unterreiner left Volkswagen on that date. He was 52 years old at the time. Sometime around that date he discussed with the Regional Service Manager the possibility of being rehired by Volkswagen in a different job. The Regional Service Manager referred Unterreiner to the Parts Department. In the middle of August 1988, a manager of that department recommended that Unterreiner take a physical examination. Based on the circumstances, Unterreiner believed that he might be rehired. Ultimately, the Parts Department did not hire him, and by September 30, 1988, he concluded that Volkswagen would not rehire him.

On June 23, 1989 Unterreiner mailed a charge to the IDHR alleging that Volkswagen terminated him because of his age. The IDHR received this charge on June 27, 1989, and cross-filed it with the EEOC. The IDHR and the EEOC dismissed the charge because it was filed more than 300 days after June 30, 1988, the date of Unterreiner’s termination. Unterreiner then filed a complaint in the district court claiming that Volkswagen violated the ADEA by terminating him. Volkswagen filed a motion for summary judgment, arguing that the statute of limitations barred Unterreiner’s claim. Un-terreiner responded that Volkswagen’s apparent- efforts to find him another position within the company and its failure to provide the required notice of his rights under the ADEA provided equitable reasons to escape the statute of limitations. The district court disagreed, and granted summary judgment based on the statute of limitations. Unter-reiner then filed this appeal.

II. Analysis

We review de novo the district court’s grant of summary judgment. Hamilton v. Komatsu Dresser Indus., 964 F.2d 600, 603 (7th Cir.1992). Summary judgment is authorized if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986). In determining whether summary judgment is appropriate, we must view the evidence in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. “In a deferral state such as Illinois, an ADEA plaintiff must .file an EEOC charge ‘within 300 days after the alleged unlawful practice occurred....’” Hamilton, 964 F.2d at 603 (quoting 29 U.S.C. § 626(d)(2)). Unterreiner mailed his charge to the IDHR on June 23,1989, which was 358 days after the June .30, 1988 date of his termination. He raises two issues on appeal:. 1) whether Volkswagen posted notice of employees’ rights under the ADEA and 2) whether Volkswagen’s alleged efforts to rehire him provided an equitable basis to escape the limitations period. We consider each issue.separately.

A. Notice

Under some circumstances, a company’s failure to post a notice of employees’ rights under the ADEA may toll the statute of limitations. Kephart v. Institute of Gas Technology, 581 F.2d 1287, 1289 (7th Cir.1978), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981). Unterreiner argues that the record presents factual questions concerning whether Volkswagen even posted an ADEA notice. Volkswagen emphatically claims that it posted such notice. Volkswagen’s Personnel Manager testified in his deposition that he posted an EEOC notice of employees’ rights on the employees’ bulletin board in January of 1984, and that the notice remained in the upper left-hand corner of the bulletin board at all times during Unterreiner’s subsequent employment.

In his deposition and in a later filed affidavit, Unterreiner exhibited an almost complete lack of recollection of what was posted on the bulletin board. He testified in his deposition that he remembered seeing some automobile leasing information on the bulletin board, but did not remember any other notices. When asked to explain his lack of memory, he stated that he “didn’t look that often” at the bulletin board. In an affidavit executed over one year after his deposition, he affirmed that other than the automobile leasing information, he “does not recall other kinds of notices that may have been posted.” He explained that he only walked by the bulletin board four or five times. He also affirmatively stated in his affidavit, however, that there definitely was no ADEA notice posted on the bulletin board. He repeats that statement in his brief. We must decide how to regard this evidence. Specifically, we must decide whether this evidence creates a genuine issue of material fact when compared to the Personnel Manager’s unequivocal testimony that he recalls posting an ADEA notice which remained on the upper left-hand corner of the bulletin board during the course of Unterreiner’s employment.

Volkswagen initially argues that we should disregard Unterreiner’s affidavit because it contradicts his deposition testimony. “A party may not create a genuine issue of fact by contradicting his own earlier statements, at least without a plausible explanation for the sudden change of heart.” Richardson v. Bonds, 860 F.2d 1427, 1433 (7th Cir.1988). In his affidavit, Unterreiner affirmatively states that there was no ADEA notice on the board. In his deposition, as well as his affidavit, he indicates that other than some automobile leasing information, he does not recall what was posted on the bulletin board; he “didn’t look at it that often.” Are these statements contradictory? They are certainly inconsistent. A party cannot claim a lack of general knowledge about a subject and later make a statement which requires detailed knowledge about the same subject. The statement that there was never an ADEA notice on the board implies that Un-terreiner specifically recalls the types of notices on the board. But he stated in his affidavit that other than some automobile leasing information, he did not recall what other kinds of notices might have been posted.

If the statements are not contradictory, the later statement is at least highly unlikely considering the earlier revelations concerning a lack of recall. If the later statement is sufficiently unlikely — to the point of unreliable — then it cannot be used to create a “genuine issue of material fact.” In Anderson v. Liberty Lobby, Inc., the Supreme Court clarified the meaning of “genuine issue of material fact.” “[Tjhere is no genuine issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11 (citations omitted).

A fact-finder could not reasonably infer from Unterreiner’s statements, taken as a whole, that the bulletin board had no ADEA notice. The statements are founded upon what Unterreiner admits to be a faulty recollection. The statements are not sufficiently probative. See Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir.1993) (“self-serving affidavits without factual support in the record will not defeat a motion for summary judgment.”). Any conflict which Unterreiner manufactures is merely colorable. See Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir.1989) (“[w]hen it is plain that the plaintiff has no case that could persuade a reasonable jury, the defendant is entitled to summary judgment.”) Statements of Volkswagen’s Personnel Manager, on the other hand, are unequivocal. He claims to have posted a notice which remained on the bulletin board at all times during Unterreiner’s employment. Unter-reiner might have established a “genuine” issue of fact by obtaining the deposition testimony or affidavits of other employees who had a better recollection of the bulletin board. He did not do so, and we are left only with his own statement based on a vague and somewhat conflicting recollection. This does not create a genuine issue of material fact.

In Posey v. Skyline Corp., 702 F.2d 102 (7th Cir.1983), we were asked to determine whether plaintiffs failure to see a posted notice of rights under the ADEA equitably tolled the limitations period. There, the company filed an affidavit in which a company representative recounted that he had conspicuously posted such notice. The plaintiff attempted to create a question of fact by filing an affidavit in which he claimed that he never saw the notice. We determined that the plaintiff failed to create a genuine issue of material fact because an assertion that he never saw the notice “is not the same as an averment that the notice was not in fact conspicuously posted.” Id. at 106. We held that “[unsupported by other evidence, [the plaintiffs] averment that he never saw an ADEA poster at [the company] fails to go far enough to rebut [the company’s] unambiguous affidavits.” Id.; accord, Vaught v. R.R. Donnelley & Sons Co., 745 F.2d 407, 412 (7th Cir.1984).

The dissent in Posey speculated that if the plaintiff (who regularly perused the bulletin board and promptly read new notices) had affirmatively stated that notice was not posted, instead of merely denying knowledge of the poster, the result would have been different. In this case, Unterreiner affirmatively testified that there was no notice posted. But unlike the hypothetical in the Posey dissent, Unterreiner’s testimony came after he professed ignorance of what was posted on the bulletin board. He claimed he seldom looked at it and remembered only some automobile leasing information. We have determined in this case that at some point a party who discounts his knowledge of a certain subject cannot create a “genuine” issue of fact by contradicting unequivocal testimony about the subject. Unterreiner admits to a lack of recall about what was on the bulletin board. He cannot create a “genuine issue of material fact” by later testifying that there was no ADEA notice on the board.¹

Although Volkswagen does not make this argument, it is possible that a fact-finder would not be allowed to hear the kind of testimony contained in the affidavit. See Palucki, 879 F.2d at 1572 (“if, as appears likely, the [deponent] would not be permitted to testify [about the matters contained in his deposition], his deposition can hardly be thought to create a genuine issue of material fact — that is, a triable issue.”). The threshold criterion for any witness to testify in district court is that he “has personal knowledge of the matter” about which he is testifying. Fed.R.Evid. 602. “Personal knowledge ... includes ... inferences from sense data as well as sense data themselves.” Palucki, 879 F.2d at 1572. In both his deposition and his affidavit, Unterreiner discounts his personal knowledge of what was on the bulletin board. He essentially claims that he had no “sense data” concerning the contents of the bulletin board; he only walked past it a few times and remembered only some ear leasing information but no other notices. It would not be an abuse of discretion if a district court deemed a person to be an unworthy witness because he previously manifested an insufficient recollection of events. See Charles A. Wright & Victor J. Gold, Federal Practice and Procedure § 6023 at 204 (1990) (“No witness would be permitted to testify on the strength of having perceived facts or events in the past if the witness admitted to having no present recollection of that perception”). By the same token, we have held that it was not an abuse of discretion where the district court struck an affidavit because, under a fair reading, it was not based on personal knowledge. Cf. Visser v. Packer Eng’g Assocs., 924 F.2d 655, 659 (7th. Cir.1991) (“testimony about matters outside their personal knowledge is not admissible, and if not admissible at trial neither is it admissible in an affidavit used to support or resist the grant of summary judgment.”); see also Zayre Corp. v. S.M. & R. Co., Inc., 882 F.2d 1145, 1150 (7th Cir.1989) (abuse of discretion is the appropriate standard to review district court’s decision .to strike an affidavit, in granting summary judgment.). The fact that Unterreiner’s testimony might not pass the threshold requirements of admissibility at trial provides further support for our conclusion that the testimony is not sufficiently probative to create a genuine issue of material fact.

The dissent in this case posits that a court cannot resolve factual issues on summary judgment. We agree. But Federal Rule of Civil Procedure 56 empowers a court to make a threshold determination of whether a factual issue is “genuine.” This power does not emanate from the court’s role as a fact-finder, a role which lays dormant during the summary judgment process. Rather, this power emanates from a court’s ability to make an initial assessment of any evidence. A district court exercises its prerogative to assess evidence at trial by determining whether any evidence is admissible. The court is not acting as a fact-finder when it makes such determinations. A district court also exercises its prerogative to assess evidence at the summary judgment stage by determining whether an alleged factual conflict is “genuine.” Not every alleged factual conflict creates a “genuine” issue of material fact. As the Supreme Court points out, if the evidence creating the alleged factual conflict “is merely colorable, or is not sufficiently probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11. Likewise, if the evidence is contradictory or otherwise inconsistent, then it does not create a genuine issue of material fact. Richardson, 860 F.2d at 1433. For the reasons we have stated, Unterreiner’s statement in his affidavit does not create a genuine issue of material fact.

B. Equitable principles

Besides contending that Volkswagen provided inadequate notice, Unterreiner invokes two other equitable principles — equitable estoppel and equitable tolling — in an attempt to escape the finality of the AJDEA limitations period. First, he claims that Volkswagen’s “efforts” to rehire him “eonstitute[ ] a triable issue of material fact” as to whether equitable estoppel applies to interrupt the running of the statute of limitations. In Mull v. Arco Durethene Plastics, Inc., 784 F.2d 284, 292 (7th Cir.1986), we stated that “an ‘employee’s hope for rehire’ or for ‘a continuing employment relationship’ in any capacity does not necessarily justify the exercise of equitable estoppel.” (Quoting Price v. Litton Business Systems, Inc., 694 F.2d 963, 965 (4th Cir.1982).) In Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450-51 (7th Cir.1990), we clarified that “equitable estoppel ... comes into play if the defendant takes active steps to prevent the plaintiff from suing in time, as by promising not to plead the statute of limitations.” From those two cases a general rule may be synthesized: that a company’s attempt to rehire an employee only implies equitable estoppel when the attempt constitutes an effort to prevent the plaintiff from suing in time. The attempt to rehire, standing alone, does not create the inference that the company was trying to prevent the filing of a lawsuit. To raise this inference, a plaintiff must show something more — for instance, an offer to rehire coupled with a request not to file. suit. In any event, in this case, just because Volkswagen may have tried to find Unterreiner a job in the Parts Department does not raise the possible inference that Volkswagen was trying to lull Unterreiner into not filing suit.

Next, Unterreiner claims that Volkswagen’s alleged attempts to rehire him equitably tolled the statute of limitations. Equitable tolling “permits a plaintiff to avoid the bar of the statute of limitations if despite all due diligence he is unable to obtain vital information bearing on the existence of his claim.” Cada, 920 F.2d at 451. We fail to see how Volkswagen’s alleged attempts to find Unterreiner a new position with the company detracted from his ability to “discover essential information bearing on his claim.” Id. at 452. Perhaps Unterreiner is arguing that Volkswagen’s enticement of continued employment reduced the diligence with which he pursued his claim. But that is really an equitable estoppel argument, bearing on Volkswagen’s behavior in causing his forbearance. We have warned against fusing the doctrines of equitable estoppel and equitable tolling in ADEA claims. Id.

Even if we assume, for the sake of argument, that Volkswagen’s alleged enticement of continued employment somehow tolled the statute of limitations until September 30, 1988, the day Unterreiner allegedly discovered there was no job for him, this would not save his claim. Equitable tolling does not “bring about an automatic extension of the statute of limitations by the length of the tolling period or any other definite term.” Id. In Cada, we refused to extend the statute of limitations when the plaintiff reasonably should have discovered his injury several months before the running of the statute. We held that “a plaintiff who invokes equitable tolling to suspend the statute of limitations must bring suit within a reasonable time after he has obtained, or by due diligence could have obtained, the necessary information.” Id. at 453.

In this case, Unterreiner presents one obstacle to his ability to obtain the necessary information — Volkswagen’s alleged enticement of continued employment. Unterreiner admits that this obstacle was removed by September 30, 1988. At that time he still had several months to file his claim but he failed to do so. Under our decision in Cada, the doctrine of equitable tolling does not allow us to exclude the time the statute allegedly was tolled from the ultimate calculation of the statute of limitations, at least when the plaintiff still had sufficient time after the tolled period to file suit. Unterreiner had sufficient time, and therefore equitable tolling does not save his claim.

C. Notice Revisited

In Kephart, we established that a company’s failure to post an ADEA notice equitably tolls the statute of limitations, and “the [statute of limitations] will begin to run when the employee either retains an attorney or acquires actual knowledge of his rights under the ADEA.” 581 F.2d at 1289. But in Cada, we determined that equitable tolling does not “bring about an automatic extension of the statute of limitations by the length of the tolling period.” 920 F.2d at 452. At oral argument, Unterreiner admitted that he knew of his claim by September 30,1988; he argued that the clock should have started to run on that date. It might be argued, in light of Cada, that regardless of whether Volkswagen posted notice, Unterreiner was required to file his claim during the original statutory period — because we no longer exclude the time the statute is equitably tolled. But Volkswagen does not raise this argument and we do not resolve it. Therefore, it remains unsettled whether our decision in Cada eliminates the automatic extension to the statute of limitations established in Kep-hart.

III. Conclusion

Unterreiner cannot escape the 300-day statute of limitations for filing his age discrimination claim under any equitable principles, and therefore the summary judgment of the district court is '

AFFIRMED.

1 . Unterreiner also argues that Volkswagen’s failure to post more than one notice equitably tolls the limitations period. The Fourth Circuit specifically rejected this argument in Morse v. Daily Press, Inc., 826 F.2d 1351, 1353 (4th Cir.1987), cert. denied, 484 U.S. 965, 108 S.Ct. 455, 98 L.Ed.2d 395 (1987), and we agree with that decision. Moreover, Unterreiner can hardly claim that the notice was not conspicuous, while at the same time claiming that he walked by the bulletin board where it was posted on four or five occasions.