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Bohac v. West

May 31, 1996

VIRGIL BOHAC, PLAINTIFF-APPELLANT,

v.

TOGO D. WEST, JR., SECRETARY OF THE ARMY, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Western District of Wisconsin. No. 94 C 858--John C. Shabaz, Chief Judge. *fn*

Before HARLINGTON WOOD, JR., CUDAHY, and ROVNER, Circuit Judges.

ARGUED JANUARY 10, 1996

DECIDED MAY 31, 1996

HARLINGTON WOOD, JR., Circuit Judge.

Virgil Bohac appeals the district court's decision to treat the Rule 12(b)(6) motion filed by Togo D. West, Jr., Secretary of the Army ("the Army"), as a motion for summary judgment. In particular, Bohac challenges the district court's failure to provide him with prior notice of the decision to convert the Army's motion and his lack of an opportunity to further supplement the record. For the reasons provided below, we vacate in part and affirm in part. The grant of summary judgment is affirmed.

I. BACKGROUND

On November 17, 1994, Bohac filed suit against the Army under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. sec. 621, et seq., and the Fair Labor Standards Act ("FLSA"), 29 U.S.C. sec. 201, et seq. Bohac, a civilian employee of the Army at Fort McCoy, Wisconsin, alleged that the Army's failure to promote him to the position of heavy equipment foreman constituted an act of age discrimination and retaliation. Bohac was 62 years old at the time of his non-promotion.

The Army filed a motion to dismiss Bohac's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Army also filed a memorandum in support of its motion to dismiss, to which various exhibits were attached. Bohac filed a memorandum in opposition to the Army's motion, to which Bohac also attached various exhibits.

On April 14, 1995, the district court entered its order on the Army's motion. In regard to Bohac's ADEA claim, the court first determined that the Army's motion should be treated as a motion for summary judgment, since both parties had submitted admissible exhibits outside the pleadings which the court had not excluded. The court thereupon granted the Army's converted motion for summary judgment after concluding that Bohac's suit was barred by his earlier failure to comply with an administrative time limit and by his failure to provide the Equal Employment Opportunity Commission ("EEOC" or "Commission") with 30 days' notice of his intent to file suit. In addition, the court granted the Army's motion to dismiss Bohac's FLSA claim.

Bohac now appeals the district court's order on his ADEA claim. Bohac primarily argues that the district court erred by failing to provide him with prior notice and an opportunity to further supplement the record after the court decided to treat the Army's motion to dismiss as one for summary judgment. Bohac does not appeal the district court's decision to dismiss his FLSA claim.

II. STANDARD OF REVIEW

We review the district court's grant of summary judgment by viewing all factual inferences in the light most favorable to the nonmoving party (herein Bohac) and determining de novo whether there exists any genuine issue of material fact requiring submission of the case to the finder of fact or whether judgment as a matter of law was appropriate. Fed. R. Civ. P. 56(c); Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir. 1993) (citations omitted). Where summary judgment has been granted in a discrimination case, however, this standard is applied with "added rigor" as intent and credibility are usually crucial issues. Sarsha, 3 F.3d at 1038 (citations omitted).

III. DISCUSSION

A. Bohac's ADEA ...


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