Hawkins v. Frank Gillman ( 2004 )


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  •                                                                 United States Court of Appeals
                                                                             Fifth Circuit
                                                                          F I L E D
                          UNITED STATES COURT OF APPEALS
                               For the Fifth Circuit                        June 25, 2004
    
                                                                      Charles R. Fulbruge III
                                   No. 03-20281                               Clerk
    
    
                                ERVIN E. HAWKINS,
    
                                                           Plaintiff-Appellant
                                       VERSUS
    
    
    FRANK GILLMAN PONTIAC, GILLMAN, LTD., and THE GILLMAN COMPANIES,
    
                                                          Defendants-Appellees.
    
    
    
               Appeal from the United States District Court
           For the Southern District of Texas, Houston Division
    
                                   (H-02-CV-80)
    
    
    Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges.
    
    PER CURIAM:*
    
          Plaintiff-Appellant     Ervin    E.   Hawkins   brought    this    action
    
    against his former employer, Frank Gillman Pontiac, Gillman Ltd.,
    
    and   the   Gillman    Companies   (“Gillman     Pontiac”)      alleging      age
    
    discrimination under the Age Discrimination in Employment Act of
    
    1967 (“ADEA”)1 and intentional infliction of emotional distress
    
    (“IIED”) under Texas state law. The district court found that both
    
    
      *
         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    opinion should not be published and is not precedent except under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.
      1
          29 U.S.C. §621, et. seq..
    
    
                                          -1-
    claims were barred by the statute of limitations and granted
    
    summary judgment in Gillman Pontiac’s favor.        We REVERSE the
    
    district court’s grant of summary judgment for Gillman Pontiac on
    
    Hawkins’s ADEA claim.   But we AFFIRM summary judgment for Gillman
    
    Pontiac as to Hawkins’s Texas state law IIED claim.
    
                                 BACKGROUND
    
          For summary judgment purposes, we review the depositions,
    
    affidavits, and documents in the record in the light most favorable
    
    to Hawkins, the non-movant.2 Applying that standard, the following
    
    facts reasonably may be found or inferred from the record.
    
          Hawkins joined Gillman Pontiac as an employee in 1964.   He was
    
    promoted to a sales manager position in 1968.         In June 1992,
    
    Hawkins was approached by one of his supervisors who offered
    
    Hawkins a mandatory transfer to the position of “fleet sales
    
    manager.”   Although Hawkins did little to investigate the fleet
    
    sales manager position, based on his 20 years’ experience with
    
    Gillman Pontiac, he believed that the transfer would be a demotion.
    
    Gillman Pontiac disputes that the offered transfer was a demotion,
    
    but it is undisputed that the compensation for the new position
    
    would have been solely commission-based whereas Hawkins’s existing
    
    sales manager position was compensated on a salary plus commission
    
    basis.
    
          The transfer Gillman Pontiac offered to Hawkins was mandatory.
    
      2
          Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 250 (1986).
    
    
                                    -2-
    In both his deposition and affidavit testimony, Hawkins testified
    
    that when he asked why he could not stay in his position as a sales
    
    manager, Hawkins’s direct supervisor told him that Gillman Pontiac
    
    wanted “new blood” in the sales manager position.                 According to
    
    Hawkins, when Hawkins asked his supervisor what the “new blood”
    
    comment meant, the supervisor clarified the comment by stating,
    
    “you know,    younger   people.”      Hawkins    decided     to   decline   the
    
    mandatory transfer and ceased working at Gillman Pontiac.
    
         In June of 1993, nearly a year after Hawkins ended his
    
    employment    with   Gillman,      Hawkins     filed    a    charge   of    age
    
    discrimination with the Equal Employment Opportunity Commission
    
    (“EEOC”).    Hawkins engaged counsel, Phyllis Finger, to represent
    
    him before the EEOC. Accordingly, Finger directed the EEOC to keep
    
    her apprised of the developments in Hawkins’s case.
    
         The EEOC administrative file, which was attached to Gillman
    
    Pontiac’s motion for summary judgment, reflects no activity on
    
    Hawkins’s discrimination charge between August 1994 and August
    
    1998. During that time, Finger closed her law practice and changed
    
    her mailing address. Finger’s affidavit states that she duly
    
    informed the EEOC of the closure of her legal practice and her new
    
    mailing   address.   The   EEOC    file,     however,   is   devoid    of   any
    
    annotations or documentation corroborating Finger’s testimony.
    
         In September of 1998, the EEOC issued a Dismissal and Notice
    
    of Rights (“right-to-sue”) letter, which was mailed but returned
    
    
    
                                        -3-
    undelivered. The right-to-sue letter itself is correctly addressed
    
    to Hawkins and marked with certified mail number Z 062 781 349.
    
    But an empty window envelope in the EEOC file with the right-to-sue
    
    letter did not indicate to whom the letter had been mailed.                 The
    
    envelope is postmarked, dated, and has the certified mail label
    
    attached. The certified mail receipt bears a handwritten note
    
    suggesting that the right-to-sue letter was to be sent to Finger.
    
    The right-to-sue letter was returned to the EEOC            undelivered and
    
    stamped “Forwarding Order Has Expired.”
    
           Hawkins’s mailing address in September of 1998 was the same
    
    address he had when he filed his charge of discrimination with the
    
    EEOC.   Hawkins was not traveling in September of 1998, and Hawkins
    
    did not recall having any trouble with his mail during that period.
    
    Additionally, Hawkins did not receive the September 1998 right-to-
    
    sue letter until it was handed to him on October 16, 2001 when
    
    Hawkins went to the EEOC office with his current counsel.
    
           On January 10, 2002, within 90 days of his October 16, 2001
    
    receipt of the September 1998 right-to-sue letter, Hawkins filed
    
    suit    in   federal   district   court    claiming     that:    (1)   he   was
    
    constructively discharged due to his age when Gillman Pontiac made
    
    the non-optional transfer offer; and (2)the constructive discharge
    
    resulted     in   emotional   distress    because     he   was   angered    and
    
    embarrassed due to the loss of his long-time position with Gillman
    
    Pontiac.
    
    
    
                                        -4-
             Gillman Pontiac moved for summary judgment on both claims.
    
     The district court granted summary judgment concluding that both
    
     claims were time-barred because: (1) the ADEA claim was not filed
    
     within 90 days of the date that the EEOC mailed the right-to-sue
    
     letter; and (2) the EEOC proceedings did not toll the two year
    
     statute of limitations applicable to IIED claims under Texas state
    
     law.     Hawkins timely appealed.
    
                                    ANALYSIS
    
             We review the district court’s grant of summary judgment de
    
     novo, applying the same criteria used by the district court.3
    
     Summary judgment is only proper if the movant can show that there
    
     is no genuine dispute as to any material issue of fact and that he
    
     is entitled to judgment as a matter of law.4         Morever, we may
    
     sustain a district court’s grant of summary judgment “on any ground
    
     supported by the record, even if it is different from that relied
    
     on by the district court.”5
    
    
    
    I.   Plaintiff’s ADEA claim
    
             In order to file an age discrimination suit under the ADEA, a
    
    
    
         3
          Hanks v. Transcon. Gas Pipe Line Corp., 
    953 F.2d 996
    , 997 (5th
     Cir. 1992)(internal citations omitted).
         4
             See Fed. R. Civ. P. 56(c).
         5
          See Holtzclaw v. DSC Communications Corp., 
    255 F.3d 254
    , 258
     (5th Cir. 2001)(internal citation omitted).
    
    
                                          -5-
    plaintiff must first file an administrative charge with the EEOC.6
    
    The time period for filing suit under the ADEA is no earlier than
    
    60 days after a charge is filed and no later than 90 days after
    
    receiving a right-to-sue letter from the EEOC.7                      Thus, an ADEA
    
    plaintiff need not wait on a right-to-sue letter to be issued by
    
    the EEOC before he files suit.8               But if the plaintiff waits until
    
    the    EEOC    issues       a    right-to-sue      letter,   the     90-day      filing
    
    requirement in ADEA is treated as a statute of limitations, and it
    
    is subject to tolling and waiver.9              We have held that delivery of
    
    a right-to-sue letter to the address designated by the plaintiff
    
    suffices      to    start      the   90-day   filing     period    unless:    (1)   the
    
    plaintiff, through no fault of his own, failed to receive the
    
    letter   or;       (2)   the    statute   should    be    tolled    for   some    other
    
    equitable reason until the plaintiff actually received notice.10
    
           Applying the pertinent legal principles to the facts that
    
    
    
      6
         See Julian v. City of Houston, 
    314 F.3d 721
    , 725 (5th Cir.
    2002).
      7
           29 U.S.C. § 626 (d)-(e).
      8
           Julian, 314 F.3d at 726 (internal citations omitted).
      9
         See Espinoza v. Missouri Pac. R.R. Co., 
    754 F.2d 1247
    , 1249
    (5th Cir. 1985).
      10
         See Espinoza, 754 F.2d at 1249; see also Franks v. Bowman
    Transp. Co., 
    495 F.2d 398
    , 405 (5th Cir. 1974)(holding that if a
    plaintiff failed to receive a notice of right-to-sue thought no
    fault of his own, delivery of the letter to the mailing address
    cannot be considered to constitute statutory notification), rev’d
    on other grounds, 
    424 U.S. 747
     (1976).
    
    
                                              -6-
    reasonably may be found and inferred in Hawkins’s favor from the
    
    evidence of record, we conclude that a reasonable trier of fact
    
    could find that Hawkins failed to receive a right-to-sue letter
    
    prior to October 16, 2001 through no fault on his part.   The record
    
    is unclear as to the address that the EEOC intended the right-to-
    
    sue letter to be delivered because the right-to-sue letter was
    
    addressed to Hawkins but a hand written note on the certified mail
    
    receipt indicates that the EEOC actually attempted to mail the
    
    letter to Finger.   Ms. Finger states that she notified the EEOC
    
    that, as Hawkins’s attorney, she would receive mailings for him.
    
    She said that she later notified the EEOC of her new address when
    
    it was changed.   Both Hawkins and Finger attested that neither of
    
    them has ever received a right-to-sue letter in this case prior to
    
    Hawkins’s October 16, 2001 visit to the EEOC office, although their
    
    correct mailing addresses were on file with the EEOC.         Thus,
    
    reading the record in the light most reasonably favorable to
    
    Hawkins, neither Hawkins nor his attorney can be held responsible
    
    for Hawkins’s non-receipt of the right-to-sue letter. Accordingly,
    
    there is a genuine dispute as to a material issue of fact that must
    
    be resolved at trial, viz., whether Hawkins and his former counsel
    
    were without fault in failing to receive the September 1998 right-
    
    to-sue letter.
    
         The question now becomes whether Hawkins can withstand Gillman
    
    Pontiac’s summary judgment challenge to the merits of Hawkins’s
    
    
    
                                    -7-
    ADEA claim.      Although the district court did not specifically
    
    consider this prong of Gillman Pontiac’s attack, we next determine
    
    if the district court’s grant of summary judgment may be sustained
    
    on any other ground supported by the record.
    
           Under ADEA, an employer may not discharge an employee on the
    
    basis of that employee’s age.11       A plaintiff must prove intentional
    
    discrimination to establish a violation of the ADEA, which he can
    
    do by presenting either direct or circumstantial evidence.12
    
           In this case, Hawkins presented direct evidence of intentional
    
    discrimination because, according to Hawkins, the reason given by
    
    his direct supervisor for the mandatory transfer was that Gillman
    
    Pontiac wanted “new blood,” “you know, younger people” in the sales
    
    manager position that Hawkins occupied.13          But even with summary
    
    judgment proof of direct evidence of intentional discrimination,
    
    Hawkins still must show that he was constructively discharged in
    
    order to survive Gillman Pontiac’s summary judgment challenge to
    
    his ADEA claim.14
    
           A   constructive   discharge    occurs   when   the   employer   makes
    
    
    
      11
           See 29 U.S.C. 623(a)(1).
      12
         See Price v. Marathon Cheese Corp., 
    119 F.3d 330
    , 336 (5th
    Cir. 1997).
      13
         See Fabella v. Soccorro Indep. Sch. Dist., 
    329 F.3d 409
    , 415
    (5th Cir 2003).
      14
         Faruki v. Parson S.I.P., Inc., 
    123 F.3d 315
    , 318-19 (5th Cir.
    1997)(internal citations omitted).
    
    
                                          -8-
    working conditions so intolerable that a reasonable employee would
    
    feel compelled to resign.15   Courts consider a variety of factors
    
    in determining whether an employee was constructively discharged,
    
    including the following: (1) demotion; (2) reduction in salary; (3)
    
    reduction in job responsibilities; (4) reassignment to menial or
    
    degrading work; (5) badgering, harassment, or humiliation by the
    
    employer calculated to encourage the employee’s resignation; or (6)
    
    offers of early retirement that would make the employee worse off
    
    whether the offer was accepted or not.16      The question is not
    
    whether Hawkins felt compelled to resign, but whether a reasonable
    
    employee in Hawkins’s situation would have felt so compelled.17
    
           After reviewing the record, a reasonable fact-finder could
    
    conclude that the mandatory transfer would have been a demotion in
    
    light of the undisputed changes in Hawkins’s salary structure and
    
    the significant reduction in number of employees he would manage in
    
    the offered position. A reasonable fact-finder could also conclude
    
    that Hawkins performed sufficient research on the offered position
    
    prior to resigning (in light of his 20-plus years’ experience at
    
    
    
      15
         See id.; Ward v. Bechtel Corp., 
    102 F.3d 199
    , 202 (5th Cir.
    1997).
      16
         Barrow v. New Orleans S.S. Ass’n, 
    10 F.3d 292
    , 297 (5th Cir.
    1994).
      17
         Id. at 297 n.19 (citing McKethan v. Texas Farm Bureau, 
    996 F.2d 734
    , 740-41 (5th Cir.), reh’g denied, 
    3 F.3d 441
     (5th Cir.
    1993), cert. denied, 
    510 U.S. 1046
    , 
    126 L. Ed. 2d 661
    , 
    114 S. Ct. 694
     (1994)).
    
    
                                    -9-
    Gillman Pontiac)    to    justify     a    finding     that   Hawkins   had   been
    
    constructively discharged.       Thus, the district court’s grant of
    
    summary judgment to Gillman Pontiac cannot be sustained based on
    
    the merits of Hawkins’s ADEA claim.18
    
    II. Hawkins’s State IIED claim
    
           The applicable statute of limitations for IIED claims in Texas
    
    is two years.19   Because Hawkins left Gillman Pontiac’s employ in
    
    July of 1992, the district court concluded that Hawkins’s IIED
    
    claim filed in federal court nine years later is time-barred since
    
    the EEOC    proceedings   did   not       toll   the   applicable   statute    of
    
    limitations period.       However, neither Texas nor this court has
    
    decided whether EEOC proceedings that a plaintiff is required to
    
    exhaust in bringing a federal discrimination claim will toll the
    
    Texas statute of limitations applicable to the state law IIED
    
    claim.    Because Hawkins cannot survive summary judgment on the
    
    merits of his IIED claim, however, we need not decide the res nova
    
    state statute of limitations issue.
    
           In order to establish a claim for IIED under Texas law,
    
    Hawkins must show that: (1) Gillman Pontiac acted intentionally or
    
    recklessly; (2) its conduct was extreme and outrageous; (3) its
    
    
    
      18
         See Fierros v. Tx. Dep’t of Health, 
    274 F.3d 187
    , 190 (5th
    Cir. 2001).
      19
         TEX. CIV. PRAC. & REM. CODE § 16.003 (West. 2004); Matlock v.
    McCormick, 
    948 S.W.2d 308
    , 311 (1997).
    
    
                                        -10-
    actions   caused     Hawkins   emotional    distress;    and      (3)   Hawkins’s
    
    resulting emotional distress was severe. Garden-variety employment
    
    disputes do not usually constitute an extreme and outrageous action
    
    for the purpose of supporting a claim for IIED.20              Moreover, “mere
    
    worry,    anxiety,    vexation,    embarrassment,       or   anger”      are   not
    
    sufficient to make out an IIED claim.21
    
           The record demonstrates that Hawkins was subjected to a few
    
    discriminatory comments and that he was worried and embarrassed by
    
    the loss of his job.      The record also shows that Hawkins endured a
    
    few sleepless nights, which he self-medicated with aspirin and
    
    over-the-counter sleeping aids.         Based on this record evidence,
    
    Hawkins has suffered neither extreme and outrageous conduct nor the
    
    severe emotional distress necessary to establish an IIED claim.
    
    Therefore we conclude that, even assuming Hawkins timely filed his
    
    IIED   claim,   summary    judgment   on    this   claim     is    nevertheless
    
    warranted.
    
                                      CONCLUSION
    
           Because we conclude that there are genuine disputes of
    
    
      20
         Southwestern Bell Mobile Sys. v. Franco, 
    971 S.W.2d 52
    ,
    53(Tex. 1998)(holding that wrongful termination of employment,
    without more, is not so extreme and outrageous to support an IIED
    claim); MacArthur v. Univ. of Tex. Hlth. Ctr., 
    45 F.3d 890
    , 899
    (5th Cir. 1995)(“In the employment context, a claim for intentional
    infliction of emotional distress will not be supported by the broad
    range of conduct labeled as ‘mere employment disputes.’”)(internal
    citations omitted).
      21
           Parkway Co. v. Woodruff, 
    901 S.W.2d 433
    , 434 (Tex. 1995).
    
    
                                         -11-
    material fact concerning Hawkins’s ADEA claim, we REVERSE the
    
    district court’s grant of summary judgment on that claim and
    
    REMAND the case for further proceedings.   However, because we
    
    conclude that Hawkins has not established all the elements of an
    
    IIED claim, we AFFIRM the district court’s grant of summary
    
    judgment on that state law claim.
    
    
    
    REVERSED IN PART; AFFIRMED IN PART; REMANDED.
    
    
    
    
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