Gambrell v. Grand Casino of MS ( 2000 )

No. 99-60634
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60634
Summary Calendar
TRACY GAMBRELL,
Plaintiff-Appellant,
versus
GRAND CASINOS OF MISSISSIPPI, INC. - BILOXI,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:98-CV-206-RG
--------------------
April 27, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Tracy Gambrell appeals the magistrate judge’s order
dismissing as time-barred her sex discrimination claims against
Grand Casino of Mississippi, Inc. because Gambrell failed to file
her charge with the Equal Employment Opportunity Commission
within the requisite 180 days. The 180-day period begins from
the “‘date of notice of termination, rather than the final date
of employment.’” Clark v. Resistoflex Co., 854 F.2d 762, 765
(5th Cir. 1988) (citations omitted). In determining when the
employee received notice, courts employ an objective standard,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 99-60634
-2-
“focusing upon when the employee knew, or reasonably should have
known, that the adverse employment decision had been made.” Id.
The magistrate judge determined that Gambrell knew she had
been terminated from her position as a valet due to pregnancy on
June 12, 1997, when she was sent home by her supervisor and told
she would need to be transferred to another position. However,
deciding to transfer a pregnant employee for safety reasons is
not necessarily a discriminatory act. See Levin v. Delta Air
Lines, Inc., 730 F.2d 994, 997-98 (5th Cir. 1984). Moreover,
Gambrell was told she would be placed in another position. Thus,
she was not necessarily aware on that date of an adverse
employment action.
There is substantial conflicting evidence regarding when
Gambrell learned that she would not be rehired. Although Grand
places much emphasis on Gambrell’s statement in her EEOC charge
and her complaint that she was terminated in June 1997, the
EEOC’s internal investigation memorandum and the testimony of
Grand’s own employees demonstrate that at no time in June 1997
was Gambrell ever told she would not be rehired due to her
pregnancy. Accordingly, we find that there are genuine issues of
material fact regarding when Gambrell knew or reasonably should
have known that the allegedly discriminatory decision not to
rehire her occurred.
For similar reasons, we find that there are genuine issues
of material fact as to whether Gambrell reasonably believed that
Grand was actively pursuing another position for her such that
the 180-day period would have been equitably tolled until
No. 99-60634
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Gambrell discovered she would not be rehired. See Cocke v.
Merrill Lynch & Co., Inc., 817 F.2d 1559, 1561 (11th Cir. 1987).
We, therefore, vacate the grant of summary judgment and remand
for further proceedings consistent with this opinion.
VACATED AND REMANDED.