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Mull v. ARCO Durethene Plastics Inc.

February 24, 1986

E. KINGSLEY MULL, PLAINTIFF,
v.
ARCO DURETHENE PLASTICS, INC., SUCCESSOR TO ARCO POLYMERS, INC., AND ATLANTIC RICHFIELD COMPANY, DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 80 C 3074 Susan Getzendanner, Judge.

Author: Wood

Before WOOD and FLAUM, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

WOOD, Circuit Judge. Eugene Crane, Bankruptcy Trustee in the Matter of E. Kingsley Mull ("bankruptcy trustee" or "trustee"), appeals the district court order granting summary judgment in favor of defendants-appellees, ARCO Durethene Plastics, Inc. (successor to ARCO Polymers, Inc.) and Atlantic Richfield Co. (collectively the "defendants"). The district court ruled that the present action, initiated by plaintiff E. Kingsley Mull under the Age Discrimination in Employment Act of 1967, as amended ("ADEA"), 29 U.S.C. § 621 et seq., was time-barred. We affirm the decision of the district court.

I.

For purposes of our review of the district court's order granting summary judgment, we will construe the facts alleged in the light most favorable to the plaintiff, E. Kingsley Mull.*fn1 Mull had been employed by defendants and their corporate predecessors in various executive positions from 1960 until his termination in 1979. For approximately eleven years prior to his termination, Mull had served as Business Manager at defendant ARCO Polymer's Chicago facility. By late 1978, Mull's performance as Business Manager had come under criticism. Robert Kauffman, then General Manager of Converted Products for ARCO Polymers, monitored Mull's work and eventually concluded that Mull would never perform satisfactorily in his present capacity.

Kauffman met with Mull on April 18, 1979, and informed him that because of his alleged inadequate performance he would be removed as Business Manager on May 14, 1979. At this meeting, Kauffmann presented Mull two options: (1) a new permanent position as a Coordinator in Philadelphia; or (2) immediate termination with the option of electing early retirement. On April 24, 1979, defendants sent Mull a letter outlining retirement figures based upon a June 1, 1979 retirement date.

On April 27, 1979, Mull wrote Kauffman requesting that his present job status be reconsidered. On May 2, 1979, Kauffman and William Allshouse, Jr., Manager of Headquarters Employee Relations, met with Mull to discuss his situation. Kauffman told Mull that his removal as Chicago Business Manager was not open for reconsideration. Mull then asked if he could accept the position as Coordinator without moving to Philadelphia. Kauffman responded that this would be impossible, but did offer Mull the option of being placed on temporary special assignment until his termination date, which had been set on December 31, 1979. Mull asked for additional time to make a decision regarding the Philadelphia position. Kauffman granted Mull's request and stated that in the interim Mull would be placed on special assignment in Chicago after his removal as Business Manager.

As the district court noted, Mull as his first deposition, did not recall any discussion regarding how long the special assignment was to last. Over a year later, however, at Mull's second deposition, he admitted that the special assignment was to terminate either upon his acceptance of the position in Philadelphia or, at the latest, on December 31, 1979. Mull acknowledged that the only permanent position defendants were offering was the Philadelphia job.

On May 11, 1979, Kauffman released an internal memorandum announcing that Mull would be placed as Business Manager and would henceforth be placed on special assignment. The memorandum also noted that Carl Gomes would "temporarily" be assigned to serve as Acting Business Manager at the Chicago facility. At his second deposition, Mull testified that he believed that Kauffman's May 11 memorandum distinguished between the "temporary" assignment Gomes received and the "special assignment he was given. Mull stated that he was aware of no other employee who had been placed on special assignment just prior to termination. In fact, he noted that he believed the special assignment was used on occasion as an interim position for persons in the process of moving from one permanent job to another. Mull did admit, however, that he never discussed the duration of his special assignment with either Kauffman or Allshouse and that, given the May 2 meeting, his understanding that he still might be in line for a permanent position, other than the one offered in Philadelphia, was "optimistic."

On June 28, 1979, Mull formerly rejected the Philadelphia job and therefore continued to serve on special assignment. During this period, Mull's work involved several long-range projects. Mull acknowledged that he unilaterally assumed he would see these projects through to their completion; he never discussed his expectations with either Kauffman or Allshouse. In fact, Mull's own handwritten notes from a meeting on November 9, 1979, with Allshouse indicate that he knew defendants expected him to retire at the end of the year.

On November 27, 1979, Allshouse requested that Mull come to his office retirement "sign-up." At their meeting, Mull stated that he was not prepared to retire and would not sign any document without the advice of counsel. Pursuant to company policy, Allshouse sent Mull a letter on December 6, 1979, indicating that he would be terminated as of December 31. This letter was the first written termination notice that Mull received.

On January 16, 1980, Mull instituted an action under the ADEA by filing a notice of intent to sue with the Equal Employment Opportunity Commission ("EEOC"). Mull alleged that defendants had illegally demoted him and eventually forced him to retire because of his age. On June 16, 1980, after being informed by the EEOC that it would take no further action, Mull filed this lawsuit. Defendants initially moved for partial summary judgment seeking dismissal of Mull's unlawful demotion claim on grounds that it was time-barred. After further discovery, defendants eventually moved for full summary judgment seeking to dismiss as untimely both Mull's unlawful demotion and unlawful termination claims.

On November 28, 1984, the district court granted defendant's motion for full summary judgment. The court noted that for purposes of this case, pursuant to 29 U.S.C. § 262(d)(1), an age discrimination suit should not have been filed in the district court unless Mull had "filed a charge with the EEOC within 180 days from the date the alleged discriminatory act occurred." Mem. Opin. at 5. The court concluded that Mull had received notice of termination on May 2, and that there was no basis for equitable modification of the 180-day filing period. Accordingly, the court found that Mull's January EEOC filing was untimely.*fn2

Since the time Mull initiated this action, he had filed for personal bankruptcy. The bankruptcy trustee therefore brings this appeal contending that the district court erred in dismissing Mull's action. The trustee argues that there are genuine issues of material fact yet to be determined including whether Mull was actually notified of his termination on May 2 and, even assuming ...


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