Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 84-1390-C James E. Noland, Judge.
Before CUDAHY, POSNER, and EASTERBROOK, Circuit Judges
EASTERBROOK, Circuit Judge.
Marshall Stewart was an industrial relations representative at RCA's plant in Marion, Indiana, until he was laid off on November 30, 1982. He filed this suit on October 16, 1984, maintaining that RCA discriminated against him on account of race, in violation of 42 U.S.C. § 1981. RCA filed affidavits of Stewart's supervisor and co-workers asserting that RCA had notified Stewart in August 1982 of the impending layoff. Because the date of notice rather than the date of the layoff is the important one for purposes of the statute of limitations, see Chardon v. Fernandez, 454 U.S. 6, 70 L. Ed. 2d 6, 102 S. Ct. 28 (1981); Delaware State College v. Ricks, 449 U.S. 250, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980), and because a plaintiff has two years to file suite in Indiana under § 1981, Movement for Opportunity v. General Motors Corp., 622 F.2d 1235, 1238 (7th Cir. 1980), RCA insisted that Stewart had filed too late.
This case has become a procedural mess because, instead of answering the complaint and moving for summary judgment, RCA attached its affidavits to a "motion to dismiss" that was filed before the answer. (RCA has yet to answer the complaint.) The "motion to dismiss" should have been left in the word processor. The complaint stated a claim for relief, and it did not self-destruct on reading. The complaint is silent on when Stewart first learned of the layoff.
Stewart responded to the motion to dismiss in January 1985 by pointing out that the suit had been filed within two years of the layoff. He did not file an affidavit setting out a contrasting view of when he learned he would be laid off. The parties discussed the legal significance of the August and November dates. On February 15, 1985, after RCA had filed its reply brief, Stewart filed an affidavit saying that he had been told in August only that a layoff was a "possibility" and that RCA was "working on other things." The position that the notice in August 1982 was ambiguous did not appear in Stewart's papers opposing the motion to dismiss. Stewart followed up with an amended complaint, filed on February 18, adding allegations of discriminatory failures to train, promote, and rehire after October 18, 1982.
The affidavit created an issue of fact, and RCA filed a supplemental brief supporting its motion to dismiss. It also asked the district judge to treat its papers as a motion for summary judgment and to hold a hearing under Fed. R. Civ. P. 43(e) to resolve the factual dispute. This rule provides that when a "motion is based on facts not appearing of record. . . the court may direct that the matter be heard wholly or partly on oral testimony or by deposition."
Stewart's response insisted that the circumstances of the affidavit's filing are irrelevant; the affidavit created a dispute about a material issue, and that is that. The response did not comment on RCA's request for a hearing under Rule 43(e). On April 11 the district judge entered an order stating: "an evidentiary hearing on said motion [to dismiss] should be heard before the below undersigned and, as matters outside the pleadings have been presented to the Court, said motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." The court set the hearing for May 2. Stewart did not protest. The hearing took place as scheduled. Five witnesses testified for RCA; Stewart and another witness testified for Stewart. Stewart's attorney addressed the court at the beginning of this hearing. Counsel spoke exclusively to the merits; he did not ask the judge to call off the hearing.
On August 28, 1985, the court entered judgment for RCA. It denied Stewart leave to file an amended complaint, without stating reasons. It resolved the question about the period of limitations by assessing the credibility of the seven witnesses at the hearing. Calling Stewart's testimony "vague," the judge concluded that Stewart knew before October 16, 1982, "that he was definitely going to be laid off." Stewart had told the Indiana Civil Rights Commission, when pursuing administrative remedies, that the layoff had been announced at the end of September. Other employees in Stewart's position testified that they knew that the decision to lay them off was final, although the date of the layoff was uncertain. The court stated: "Plaintiff's testimony to the contrary appears to be little more than an afterthought designed to save the case from dismissal."
RCA's motion to dismiss called for the court to decide legal issues raised by the complaint, and this complaint was sufficient. the motion to dismiss was the wrong way for RCA to raise the timeliness of the complaint. Cf. McLain v. Real Estate Board of New Orleans, Inc., 444 U.S. 232, 246-47, 62 L. Ed. 2d 441, 100 S. Ct. 502 (1979). Summary judgment was the right way, and the district court treated the motion to dismiss as one for summary judgment. But a judge may not assess the credibility of witnesses to decide a motion for summary judgment. This follows from the fact that the court may grant the motion only if there is "no genuine issue as to any material fact" (Rule 56(c)). See Poller v. Columbia Broadcasting Co., 368 U.S. 464, 473, 7 L. Ed. 2d 458, 82 S. Ct. 486 (1961). The date on which Stewart first learned that his layoff is a "material fact" by any definition. A disagreement among live witnesses-Stewart and RCA's witnesses gave contradictory renditions of what Stewart had been told and when -is as much a "genuine issue" as a court ever sees. A court might be able to find a witness incredible as a matter of law if he had told a different story under oath before recognizing the legal significance of the truth, or if the current story were irrefutably contradicted by documentary evidence. Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361 (8th Cir. 1983). Yet there were no documents-all of RCA's communications to its employees were oral-and Stewart's complaint to the administrative tribunal said that he had been told about the layoff in September but did not discuss the degree of specificity of the communication, which became the central issue in this case.
The district judge stated that under Rule 43(e) the court may " receive and weigh" oral and written evidence, quoting and adding emphasis to Shaffer v. Coty, Inc., 183 F. Supp. 662, 665 (S.D. Cal. 1960). If this were right, it would be the end of the difference between summary judgment and trial; indeed it would be the end of the jury trial. All a judge would have to do is identify a dispositive issue, set a hearing under Rule 43(e), and resolve all factual disputes. This is not right. Rule 43(e) has more limited roles, which do not include hearings of the sort held in this case.
A judge decides many motions. A motion to dismiss for want of jurisdiction is decided by the court alone. So, too, with motions to quash subpoenas and motions for new trials, two among the many for which Rule 43(e) was designed. See 9 C. Wright & A. Miller, Federal Practice and Procedure § 2416 (1971). A court may choose among methods for gathering the evidence, when it will resolve all factual disputes. Rule 43(e) gives the judge the full menu- oral testimony, depositions, affidavits, and documents. He may use the one best suited to the occasion. A judge hearing a motion for summary judgment has not similar right to decide which evidentiary material are the best ones for resolving a disputed question of fact; the judge ...