Shockley v. Vermont State Colleges

793 F.2d 478, 45 Fair Empl. Prac. Cas. (BNA) 923

Opinions

ALTIMARI, Circuit Judge:

Appellant Joe Shockley, Jr. appeals from a judgment entered January 7, 1986 in the United States District Court for the District of Vermont, James S. Holden, Senior United States j District Judge, granting summary judgment in favor of defendants in an action alleging violations of rights secured by the Fourteenth Amendment to the United States Constitution and by the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., (“ADEA”), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., (“Title VII”), 42 U.S.C. section 1983, and state contract law.

Appellant contends that the district court acted improperly by ignoring material facts in the record, by resolving fact questions, and by failing to view the record in a light most favorable to appellant. More particularly, appellant argues that the district court erred in finding that he had failed to file his charges under the ADEA and Title VII with the EEOC within 300 days after receiving final notice of termination and in finding that the case does not present facts on which a jury could find that the limitations period was tolled or that the appellees were estopped from replying on the limitations bar.

For the reasons stated below, we affirm.

FACTS

Appellant was appointed to a non-tenured faculty position at Lyndon State College (“Lyndon”), a part of the Vermont State College system, in 1978. Appellant received a letter of non-reappointment dated July 17, 1981 from the President of Lyndon, appellee Janet Gorman Murphy. The letter stated: “I regret to inform you that upon review of your personnel file I have decided not to reappoint you for the 1982-1983 academic year. Therefore, the 1981-1982 academic year will be your final year at Lyndon State College.”

At the time of this decision, appellant was covered by a collective bargaining agreement in force between Vermont State Colleges and the VSC Faculty Federation, AFT, AFL-CIO. The collective bargaining agreement provided a one-year notice of nonrenewal to faculty members with two years of service and also provided:

Reappointment is presumed unless there is a written notification of non-reappointment no later than (a) March 1 of the first year of service, (b) December 15 of the second year of service, (c) September 1 of all succeeding years, or unless the appointment is terminal____ In all cases of non-reappointment written notice of reasons shall be given after the third full year of service.

By letters dated August 14 and 15, 1981, appellant advised appellee Murphy that (1) he was filing a grievance under the collec tive bargaining agreement; (2) he believed his termination was based on age, sex, and handicap discrimination; and (3) the July 17, 1981 termination letter was ineffective since it failed to provide reasons for the termination. By letter dated September 16, 1981, appellant was informed that his grievance was denied and that the reason for his termination was a lack of “substantially above average teaching effectiveness.”

During November of 1981, appellant met with appellee Murphy and was told repeatedly by appellee that the non-reappointment decision would not be rescinded.

At a department meeting held on March 9, 1982, which appellant attended, a fellow faculty member reported that “Dean Dethy will not replace Joe Shockley’s position. He feels that Dr. Shockley will return in the Fall. When asked what will happen if Dr. Shockley does not return, Dean Dethy replied that the Recreation Department would only be a four-position Department.” See Minutes of the March 9, 1982 Recreation and Leisure Studies Department Meeting, App. at 35.

On May 27, 1982, the Vermont Labor Relations Board upheld Lyndon’s decision to terminate appellant. Following a request for reconsideration, the Board reaffirmed its decision on July 15, 1982. Appellant taught at Lyndon through the academic year that ended in June, 1982.

Appellant filed a charge of sex, age, and handicap discrimination with the Equal Employment Opportunity Commission (“EEOC”) and the Civil Rights Division of the Vermont Attorney General’s Office on September 29, 1982. The charge was received by the EEOC on October 1, 1982, but was not filed within the meaning of 29 U.S.C. section 626(d)(2) and 42 U.S.C. section 2000e-5(e) until November 29, 1982. See Mohasco Corp. v. Silver, 447 U.S. 807, 814 n. 16, 100 S.Ct. 2486, 2491 n. 16, 65 L.Ed.2d 532 (1980). Appellant received a right-to-sue letter dated May 11, 1983 from the EEOC, and filed his complaint with the district court on August 8, 1983.

PROCEDURAL BACKGROUND

Appellees filed the first of two motions for summary judgment on November 2, 1983, asserting that (1) appellant’s ADEA and Title VII claims were barred because not timely filed with the EEOC, see 29 U.S.C. § 626(d); 42 U.S.C. § 2000e-5(e); (2) appellant’s ADEA claim was barred because not filed with the court within the two-year statute of limitations applicable in ADEA cases, see 29 U.S.C. §§ 255, 626(e); (3) appellant’s claims had been adjudicated before administrative agencies, and thus appellant was barred from relitigating those claims by the doctrines of res judica-ta and collateral estoppel; and (4) there remained no genuine issues of material fact. By Memorandum of Decision dated August 21, 1984, Judge Holden denied the motion for summary judgment finding that certain facts may have “clouded” the finality of the July 17, 1981 notice of non-reappointment, and ordered that discovery proceed so as to clarify “conflicting inferences” regarding equitable tolling or estoppel. Memorandum of Decision, 83-CV-289 at 9, 12 (August 21, 1984). Discovery was completed by April 30, 1985.

On May 21, 1985, appellees filed their second motion for summary judgment, renewing their earlier arguments and emphasizing that appellant’s deposition testimony established that there was no basis for tolling the applicable statute of limitations. By Memorandum of Decision dated January 7, 1986, Judge Holden held that the July 17, 1981 letter was a final notice of termination and that “[t]he record, as now constituted, clearly demonstrates ... that [appellant] has not been obstructed in presenting his complaint by any misleading inducement or deceptive conduct on the part of the defendants.” The judge concluded that “[i]n this context of undisputed facts, there is no basis for equitable tolling of the statute of limitations.” Memorandum of Decision, 83-CV-289 at 7 (January 7, 1986). Accordingly, judgment was entered in favor of appellees as to appellant’s claims under the ADEA and Title VII. Appellant’s pendent state contract claims were dismissed without prejudice while appellant’s cause of action under Section 1983 was dismissed for failure to state a claim. See Shaw v. Merritt-Chapman & Scott Corp., 554 F.2d 786, 789 (6th Cir.), cert. denied, 434 U.S. 852, 98 S.Ct. 167, 54 L.Ed.2d 122 (1977) (court may presume an adjudication on the merits where district court fails to specify otherwise).

DISCUSSION

The only issue before this court is whether summary judgment was awarded properly in favor of appellees. The standard for reviewing a grant of summary judgment is the same as that applied by the district court when initially deciding the motion under Federal Rule of Civil Procedure 56(c). See Burtnieks v. City of New York, 716 F.2d 982, 985 (2d Cir.1983) (citing C. Wright, A. Miller & M. Kane, 10 Fed. Prac. & Proc. § 2716 (2d ed. 1983)). When ruling on a motion for summary judgment, a court must “resolve all ambiguities and inferences ... in the light most favorable to the party opposing the motion,” United States v. One Tintoretto Painting, 691 F.2d 603, 606 (2d Cir.1982) (citations omitted), and may grant the motion only if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R. Civ.P. 56(c).

Under the ADEA and Title VII, a charge of discrimination must be filed with the EEOC before instituting an action in federal court. 29 U.S.C. § 626(d); 42 U.S.C. § 2000e-5(e); see United Air Lines Inc. v. Evans, 431 U.S. 553, 555 n. 4, 97 S.Ct. 1885, 1887 n. 4 (1977); O’Malley v. GTE Service Corp., 758 F.2d 818, 820 (2d Cir.1985). Specifically, the ADEA requires that in a “deferral state,” such as Vermont, a charge must be filed “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. § 626(d)(2). Title VII prescribes similar time limits for filing with the EEOC, 42 U.S.C. § 2000e-5(e).

Generally, the timeliness of a discrimination claim is measured from the date the claimant receives notice of the allegedly discriminatory act, not from the date the decision takes effect. See Char-don v. Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 29, 70 L.Ed.2d 6 (1981); Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980); O’Malley v. GTE Service Corp., 758 F.2d 818, 820 (2d Cir.1985); Miller v. International Telephone & Telegraph Corp., 755 F.2d 20, 23 (2d Cir.), cert. denied, — U.S. -, 106 S.Ct. 148, 88 L.Ed.2d 122 (1985). Appellees are alleged to have unjustifiably terminated appellant under the guise of an annual performance review. Accordingly, this court must determine when appellant received final notice of termination, the allegedly discriminatory act.

Appellees contend that the alleged act of discrimination occurred on July 17, 1981, the date of the non-reappointment letter, thereby making the November 29, 1982 filing with the EEOC untimely. Conversely, appellant argues that the July 17, 1981 letter was invalid because it failed to conform to the collective bargaining agreement, and therefore that the act of discrimination did not occur until he was actually discharged in June, 1982. In the alternative, appellant contends that appellees’ acts after sending the termination letter led him to believe that he had not been terminated, and that appellees therefore are estopped from relying on the limitations bar. More particularly, appellant asserts that the district court failed to address the following uncontested, material facts:

1. That appellees failed to provide reasons for the termination as required under the collective bargaining agreement;

2. That the Academic Dean indicated at the March 9,1982 department meeting that appellant would be retained;

3. That faculty are assumed reappointed if not notified to the contrary; and

4. That appellant believed that the July 17, 1981 letter was not a final notice of termination.

Like the district court in its Memorandum of Decision dated January 7,1986, this court finds these assertions to be of no great import in view of the unequivocal statements made by appellant during his deposition. Appellant admitted at his deposition that (1) he failed to file his EEOC claim because he was ignorant of the law and because he chose to await the outcome of a formal arbitration hearing before the Vermont Labor Relations Board; (2) appel-lee Murphy was emphatic in denying appellant’s requests for reconsideration of the nonrenewal decision; and (3) a fellow faculty member — not Dean Dethy — had made the statement at the March 9, 1982 department meeting that “[h]e feels that Dr. Shockley will return in the Fall.”

This deposition testimony makes clear appellant’s state of mind during the period at issue. The discovery ordered by the district court when denying appellee’s initial motion for summary judgment served the purpose for which it was intended — it made certain whether or not appellant was aware of the finality of the July 17, 1981 letter of non-reappointment or acted in reliance on appellee’s actions. Appellant revealed during his deposition that he was dilatory in filing not because of some act on the part of appellees, but because of his ignorance of the law and willingness to await the outcome of the grievance procedure. Based on these facts, this court must affirm the findings that the July 17th letter of non-reappointment was a “final” notice of termination within the meaning of Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), and that appellees did not act to mislead appellant. The district court’s finding that there is no genuine issue as to any material fact is correct. The district court did not engage in the resolution of disputed factual questions, but instead relied on the “record, as now constituted” which contained a clear statement of appellant’s thought processes — his deposition. The contradictions existing in appellant’s statements do not constitute disputed factual questions; rather they represent vain attempts to divine questions of fact. There being none, no trial is warranted.

ATTORNEY’S FEES

Appellees’ request, pursuant to section 706 of Title VII, 42 U.S.C. § 2000e-5, for attorney’s fees both below and on appeal is denied since appellant’s action was not “frivolous, unreasonable, or without foundation.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978).

Accordingly, the district court’s judgment is hereby affirmed.