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Kaveler v. U.S. Bancorp Insurance Service

September 17, 2007

RICHARD K. KAVELER, PLAINTIFF,
v.
U.S. BANCORP INSURANCE SERVICE, LLC, DEFENDANT.



The opinion of the court was delivered by: Herndon, District Judge

MEMORANDUM & ORDER

I. INTRODUCTION

Before the Court is Defendant's Motion for Summary Judgment (Doc. 15), made pursuant to FEDERAL RULE OF CIVIL PROCEDURE 56, to which Plaintiff has filed an opposing Response (Doc. 17) and Defendant replied (Doc. 20). Plaintiff was employed by Defendant as an Insurance Specialist from December 1, 2000, until he was terminated on or about February 28, 2005, just one month shy of his 58th birthday (see Doc. 16, p. 2; Doc. 1, ¶¶ 5 & 11). Believing he was a victim of illegal age discrimination, Plaintiff filed a four-count suit against Defendant. Count I states a claim of age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 - 634. Count II states a claim of retaliatory discharge under the ADEA. Count III states a claim of age discrimination under the Missouri Human Rights Act ("MHRA"), MO.REV.STAT. §§ 213.010-213.095. Count IV states a claim of retaliatory discharge under the MHRA (Doc. 1).

Defendant believes it is entitled to summary judgment because the evidence shows Plaintiff was terminated for legitimate, non-discriminatory reasons. Contesting this assertion, Plaintiff argues his suit should survive summary judgment due to existing questions of fact regarding Defendant's motivation behind Plaintiff's termination. The Court, addressing the parties' specific contentions herein, findsin favor of Plaintiff.

II. DISCUSSION

A. Legal Standard

Summary judgment is appropriate under the Federal Rules of Civil Procedure when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The movant bears the burden of establishing the absence of factual issues and entitlement to judgment as a matter of law. Wollin v. Gondert, 192 F.3d 616, 621-22 (7th Cir. 1999). The Court must consider the entire record, drawing reasonable inferences and resolving factual disputes in favor of the non-movant. Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1057 (7th Cir. 2000); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999).

In response to a motion for summary judgment, the non-movant may not simply rest on the allegations as stated in the pleadings. Rather, the non-movant must show through specific evidence that an issue of fact remains on matters for which the non-movant bears the burden of proof at trial. Walker v. Shansky, 28 F.3d 666, 670-71 (7th Cir. 1994), aff'd, 51 F.3d 276 (citing Celotex, 477 U.S. at 324).

B. Analysis

Defendant first asserts that Counts I and II of Plaintiff's Complaint should be dismissed as untimely filed. Defendant then bases its request for summary judgment on the grounds that: (1) Plaintiff cannot meet his prima facie burden to establish age discrimination in Counts I and III, and (2) Plaintiff cannot show that he engaged in a statutorily protected activity causally connected to his termination for his retaliation claims in Counts II and IV. The Court will consider these bases in like sequence.

1. Timeliness of Filing

Counts I and II of Plaintiff's Complaint are brought pursuant to the ADEA, which requires "an aggrieved person to file suit [within] 90 days after receipt of the Notice of Dismissal or Termination . . . ." 29 C.F.R. § 1626.18(c); Houston v. Sidley & Austin, 185 F.3d 837, 838-39 (7th Cir. 1999). Defendant states Plaintiff's Notice of Right to Sue was issued and mailed by the EEOC on September 30, 2005, however, Plaintiff admits he has no recollection of the actual date he received the Notice (Doc. 16, p. 11). The record shows Plaintiff filed suit on January 3, 2006 (Doc. 1), which Defendants note is 94 days after the Notice of Right to Sue was issued and mailed. Defendants arrive at this calculation via FEDERAL RULE OF CIVIL PROCEDURE 6(e), which allows a party an additional three days to the respond if service is made by mail, and also cite case law for the proposition that when the date of receipt is unknown, the courts presume receipt within three days of mailing, under Rule 6(e) (Doc. 16, pp. 11-12). While the cases Defendant cites are not themselves binding precedent, the Court finds this rationale sound, as proscribed by the United States Supreme Court. See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 148 n.1 (1984)(presuming right to sue notice from EEOC was received three days after its issuance, pursuant to Rule 6(e) when plaintiff did not have proof otherwise).

Plaintiff contends his filing is still considered timely even without proof that he received the Notice later than three days after issuance, as the 93rd day, January 2, 2006, fell on a federal holiday and thus, the next date Plaintiff could file suit was January 3, 2006, which he did. If the Notice was issued on September 30, 2005, which was a Friday, then the earliest it could have been received was Monday, October 3, 2005. Counting 90 days from October 3, 2005 makes the deadline fall on January 1, 2006, which was a Sunday.*fn1 Asking the Court to take judicial notice that Monday, January 2, 2006, was a federal holiday, the earliest date he could file would have been Tuesday, January 3, 2006, and this date was timely under Rule 6(a) (Doc. 17, p. 6). Consequently, in its Reply (Doc. 20), Defendant does not again address the timeliness issue.

The Court takes judicial notice of the fact that Monday, January 2, 2006, was a federal holiday (New Year's Day) and that the Clerk's office was closed for filing new matters. Therefore, the Court finds Plaintiff timely filed his Complaint and Counts I and II should not be dismissed as untimely.

2. Age Discrimination

Counts I and III state claims of age discrimination, the first brought pursuant to the ADEA, the later pursuant to the MHRA. Because the MHRA "mirrors federal law," claims made pursuant to the MHRA are analyzed under the same federal standards as ADEA claims. See Walton v. McDonnell Douglas Corp., 167 F.3d 423, 426 n.4 (8th Cir. 1999)(citing Kneibert v. Thomson Newspapers, Mich. Inc., 129 F.3d 444, 451 n.3 (8th Cir. 1997)); see alsoTart v. Hill Behan Lumber Co., 31 F.3d 668, 671 (8th Cir. 1994). Defendant asserts that Plaintiff fails to meet his prima facie burden to establish age discrimination because he cannot show ...


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