Appeal from the United States District Court for the Eastern District of Wisconsin. No. 88 C 55, Terence T. Evans, Judge.
Wood, Jr., Posner, and Manion, Circuit Judges.
This is the second time we consider this case. James Smith sued his employer, General Scanning, Inc. ("GSI"), alleging that he had been discharged in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. The district court granted GSI's motion for summary judgment. Smith appealed, and we vacated the district court's judgment and dismissed the action for Smith's failure to satisfy the state filing requirement contained in 29 U.S.C. § 633(b). Smith v. General Scanning, Inc., 832 F.2d 96 (1987) (Smith I). However, we invited Smith to refile his charge with the EEOC and the appropriate state agency, and, after 60 days, to commence a new action in federal district court. We also instructed Smith to plead and prove the existence of equitable grounds for tolling the filing requirement. Smith refiled with both agencies and brought suit in the district court. The district court again did not resolve the equitable tolling issue, opting instead to adopt its earlier decision on the merits in favor of GSI. Although we are troubled by the district court's failure to expressly rule on the equitable tolling issue, we nevertheless affirm its decision on the merits.
We set forth the facts of this case in our prior decision. Because they are also relevant here, we repeat them:
October 3, 1980, GSI hired appellant Smith, then 57 years old, to be an Applications Engineer Sales Person in its Eastern Region motor division office in Boston. A year later the company transferred him to the Central Region [also known as the Midwest region] office in Chicago, as a Sales Engineer, to promote GSI's two basic products, Electro-Optical (laser) Scanners and Electro-Mechanical (strip chart) Recorders. However, Smith was notified by letter dated December 9, 1983, that GSI was closing its Central Region sales office, and that Smith's duties would terminate on December 31, 1983. The reason given for the termination was that GSI was forced to reduce its sales staff 'because of a second year of flat sales and reduced profits.' Smith was then 60 years old.
Smith filed a charge of age discrimination with the Wisconsin Department of Industry, Labor and Human Relations on June 26, 1984. That agency returned the charge to him for lack of jurisdiction over an employer located in Massachusetts. Thereafter, on September 5 of that year, he submitted the charge to the Boston office of the Equal Employment Opportunity Commission; the EEOC replied that it would not proceed further with its processing of Smith's charge. Smith's third filing was this action, brought in federal district court in Wisconsin on December 6, 1985.
The district court, without addressing the administrative filing requirements of the ADEA, granted GSI's motion for summary judgment on two grounds. It first found that the plaintiff failed to prove an essential element of the prima facie case of age discrimination, qualification for the position. [The sales engineer job description requires that an applicant have a Bachelor of Science degree. Smith admitted in his deposition that he had falsified his resume which stated that he had not only a bachelor's degree but a master's degree as well. The district court found that because Smith did not have the required college degree, he could not show he was qualified to be a sales engineer with GSI.] It further found that, even had Smith established a prima facie case, GSI's reasons for its employment decisions were legitimate and nondiscriminatory. Because Smith was unable to show that his employer's reasons were pretextual, he failed in his final burden. Thus, the court granted GSI summary judgment as a matter of law.
Smith I, 832 F.2d at 97 (footnote omitted). After the case was dismissed, Smith refiled with the EEOC, filed a charge for the first time with the Massachusetts Commission Against Discrimination (the proper state agency), and then filed suit in federal district court. The district court then adopted its earlier decision granting summary judgment for GSI.
Smith's post-dismissal filings were untimely. But despite the district court's "duty . . . to consider whether an 'equitable exception justifies ignoring [the ADEA's administrative filing procedures],'" id. at 100 (quoting Settino v. City of Chicago, 642 F. Supp . 755, 759 (N.D.Ill. 1986)), it glossed over the tolling issue and instead focused on the merits of this dispute. In the court's order the district judge stated, "[although] I'm not certain that the plaintiff has adequately pled grounds for the tolling of the statute of limitations, I will resolve this case on the merits." It then adopted its earlier decision granting GSI summary judgment.
It is well-settled that the ADEA's administrative filing requirements are not jurisdictional; rather, they are only preconditions to filing suit. See, e.g., Overgard v. Cambridge Book Co., 858 F.2d 371, 374 (7th Cir. 1988). Therefore, they are subject to equitable modification. Stearns v. Consolidated Management, Inc., 747 F.2d 1105, 1111 (7th Cir. 1984). See also Husch v. Szabo Food Service Co., 851 F.2d 999, 1003 n.7 (7th Cir. 1988). The district court should have discussed whether Smith's belated filings were sufficient under equitable tolling principles. It did not, apparently believing that this was pointless in light of its earlier determination against Smith on the merits. The only way the second decision would have differed from the first, would have been if no grounds for equitable tolling existed. In that event, the case would have been dismissed without even reaching the merits. In either situation, though, the end result is the same: the case is dismissed. Thus, on the unique facts presented here, the district court believed there was no reason to discuss the tolling issue. Because we agree with the district court's determination on the merits, there is no need to remand for a second time on the tolling question, as that would additionally burden the court's calendar and needlessly increase legal fees. However, we stress ...