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Thelen v. Marc's Big Boy Corp.

August 21, 1995

JOHN A. THELEN, PLAINTIFF-APPELLANT,

v.

MARC'S BIG BOY CORP., MARCUS CORP., AND STEPHEN H. MARCUS, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 89 C 1467 -- J. P. Stadtmueller, Judge.

Before POSNER, Chief Judge, and CUMMINGS and KANNE, Circuit Judges.

KANNE, Circuit Judge.

ARGUED FEBRUARY 21, 1995

DECIDED AUGUST 21, 1995

On November 9, 1987, John Thelen was terminated from his employment with Marcus Corp. and its wholly-owned subsidiary Marc's Big Boy Corp. On August 11, 1988, Thelen filed a charge with the Equal Employment Opportunity Commission, claiming that his discharge violated the Age Discrimination in Employment Act. He later filed an age discrimination suit in state court, along with state claims for breach of contract and intentional interference with an employment relationship. Defendants removed the case to federal court. *fn1 The district court granted the defendants summary judgment on the ADEA claim because Thelen did not file his charge with the EEOC within 300 days of the discriminatory act, as the ADEA requires. *fn2 The district court also granted the defendants summary judgment on the state claims.

ADEA Claim

Thelen argues on appeal that the discovery rule, equitable estoppel and equitable tolling make his ADEA claim timely. We review the district court's summary judgment de novo, reviewing the record in the light most favorable to Thelen. DeLuca v. Winer Indus., Inc., 53 F.3d 793, 796 (7th Cir. 1995).

Under 29 U.S.C. sec. 626(d)(2), the plaintiff must file a charge with the EEOC within 300 days of the time that his action began to accrue. Thelen first argues that "the discovery rule extends the accrual of Thelen's claim until some time after October 21, 1988." That was the date his supervisor, Daniel Waldschmidt, told him that Douglas Nies, rather than Richard Heintz, had taken over Thelen's prior job duties. Nies was 33 years younger than Thelen, while Heintz was only six years his junior. Thelen claims that it was not until he learned who his replacement was that he suspected that he may have been a victim of age discrimination. Thus, Thelen asserts that his claim did not begin to accrue until he suspected that his termination was wrongful.

Thelen has confused the discovery rule with the doctrines of equitable tolling and estoppel. A plaintiff's action accrues when he discovers that he has been injured, not when he determines that the injury was unlawful. See, e.g., Teumer v. General Motors Corp., 34 F.3d 542, 550 (7th Cir. 1994) ("Teumer presents a meritless argument that the claim did not accrue until he first discovered the information from which he ascertained the alleged unlawful nature of the layoff. As GM rightly points out, such a contention has nothing to do with accrual; Teumer is really insisting that the limitations clock should be equitably tolled for the time in which he was unable to determine that his injury (of which he was aware) -- the layoff -- was due to wrongdoing."); Moskowitz v. Trustees of Purdue Univ., 5 F.3d 279, 281 (7th Cir. 1993) (holding, in an ADEA case, that plaintiff-professor's action accrued when he was denied laboratory space); Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990) (stating that equitable tolling "differs from the [discovery rule] in that the plaintiff is assumed to know that he has been injured, so that the statute of limitations has begun to run; but he cannot obtain information necessary to decide whether the injury is due to wrongdoing and, if so, wrongdoing by the defendant.").

Thelen's injury was his termination. He "discovered" his injury on November 9, 1987 when Kenneth MacKenzie, Marcus Corp.'s Controller, informed Thelen that he was to be terminated, effective December 15, 1987. Thus, the statute of limitations on Thelen's action began on November 9. Thelen, therefore, must attempt to rely on the equitable doctrines of tolling and estoppel to make his claim timely.

We first examine whether Thelen can halt the running of the statute of limitations for any of the time between his discharge and October 21, 1988, the day he learned that Nies, not Heintz, was doing the work he had previously performed. Thelen first appears to claim that equitable estoppel applies to this period of time. Equitable estoppel -- sometimes referred to as fraudulent concealment -- "comes into play if the defendant takes active steps to prevent the plaintiff from suing in time," Cada, 920 F.2d at 450, such as by hiding evidence or promising not to plead the statute of limitations. Thelen argues that, because MacKenzie told him that Heintz would be taking over most of his job duties (when in fact Nies was to be his replacement), *fn3 the statute of limitations should not begin until October 21, 1988. While Thelen's position has some support in other circuits, see, e.g., Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1386 (3rd Cir. 1994), we have declined to endorse it. It is the view of this court that such a position would eviscerate the concept of a limitations period because "[i]t implies that a defendant is guilty of fraudulent concealment unless it tells the plaintiff, 'We're firing you because of your age.' " Cada, 920 F.2d at 451; see also Lever v. Northwestern Univ., 979 F.2d 552, 556 (7th Cir. 1992).

Thelen also argues that equitable tolling applies to the time between his discharge and his discovery that Nies had taken over many of his job duties. A plaintiff may toll the statute of limitations if, despite all due diligence, he is unable to obtain enough information to conclude that he may have a discrimination claim. See Chakonas v. City of Chicago, 42 F.3d 1132, 1135 (7th Cir. 1994); Cada, 920 F.2d at 451. Equitable tolling does not postpone the running of the statute of limitations until the plaintiff is "certain his rights had been violated." Cada, 920 F.2d at 451. Rather, the limitations period begins to run when a reasonable person would believe he may have a cause of action. This is especially true when the plaintiff need only file a charge with an administrative agency. A plaintiff has no duty of prefiling investigation for an administrative complaint. To the contrary, "one purpose of filing an administrative complaint is to uncover [facts relevant to the case]." United States v. Paternostro, 966 F.2d 904, 907 (5th Cir. 1992) (citation omitted).

Moreover, unlike equitable estoppel, the court does not grant the plaintiff a fresh 300 days to file his charge once he obtains enough information to suspect discrimination; he must file his charge with the EEOC within a reasonable time. See id. at 453. Thelen's argument fails to clear this hurdle. Assuming that Thelen did not have enough information to file his charge with the EEOC until Waldschmidt told him that Nies was performing his duties, Thelen waited nearly 10 months, until August 14, 1989, to file his charge. Without some justification, such a delay is unreasonable; Thelen could have filed his administrative complaint within days, and at most weeks, of October 21, 1988. Thelen certainly had enough information to know that he may have been a victim of discrimination at this time -- in fact he admits that that is so in his brief. After his discussion with Waldschmidt, Thelen claims he began his own investigation because he suspected age discrimination.

To account for the time between October 21 and August 14, Thelen first asserts that he performed his own investigation. But we have already noted that one need not perform a prefiling investigation for an administrative claim. We do not mean to suggest that one cannot perform any prefiling investigation, but, when a plaintiff has already missed the ...


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