IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-50254
Summary Calendar
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OLIVER PURCELL,
Plaintiff-Appellant,
VERSUS
SHEILA E. WIDNALL,
Secretary of the Air Force,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
(SA-94-CV-741)
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November 21, 1996
ON PETITION FOR REHEARING
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:*
The petition for rehearing is GRANTED. In his petition,
Purcell correctly points out that we erred in addressing the issue
on appeal as equitable tolling, when in fact, on appeal, Purcell
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published except under the limited circumstances set forth
in 5TH CIR. R. 47.5.4.
had abandoned equitable tolling and is raising only equitable
estoppel, a theory he also pursued in the district court.
In his report and recommendation adopted by the district
court, the magistrate judge properly distinguished equitable
tolling from equitable estoppel. In his discussion of equitable
estoppel, the magistrate judge makes the following correct
statement: “[I]f Defendant is equitably estopped for not expressly
declaring to Plaintiff that his discharge was due to his age, such
would be tantamount to asserting that an employer is equitably
estopped whenever it does not disclose a violation of the statute.”
The magistrate judge, however, goes on to say, “Plaintiff's only
allegation in this regard is that Defendant concealed the fact that
Plaintiff's termination was based on age discrimination.”
The magistrate judge's reasoning makes sense: Concealment
does not take place merely because the defendant fails explicitly
to tell the employee that he is being discriminated against. As
such employer pronouncements are rare, such a rule would lead to
equitable estoppel in almost every case.
The magistrate judge overlooked, however, other statements in
Purcell's affidavit, tendered in opposition to the motion for
summary judgment. He states that at the time he was notified of
his termination,
I was informed . . . that the [adverse action] was caused
by the need to phase out certain positions and job
responsibilities . . . . Scanlon informed me that this
[action] was to reorganize certain jobs, and to com-
pletely eliminate the one that I was performing at the
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time. There was no indication that the duties being
performed by me at the time would be continued. In fact,
the contrary was stated by Scanlon. My job was not to be
filled, and many of the duties of this newly created
position would be abandoned.
Several months after . . . my separation . . ., I
learned that the duties previously performed by me were
continued, and were in fact being performed by several
younger architects . . . .
In other words, Purcell is arguing that even if he was aware
that younger people were being hired, he was misled into believing
that they would not be replacing him, as he was told his duties
were being phased out. Under the right circumstances, such
misleading statements, if true, could constitute equitable
estoppel, which consists of acts by the employer that cause the
employee not to pursue his rights timely in bringing a discrimina-
tion claim.
We cannot be sure that the magistrate judge addressed all of
the assertions in Purcell's affidavit when making his recommenda-
tion. This is coupled with the fact that in its order accepting
the magistrate judge's recommendation, the district court seems to
mix the concepts of equitable tolling (regarding what the plaintiff
knew) and equitable estoppel (concerning whether the employer
affirmatively misled him).
The issue of equitable tolling is now out of this case. It is
in the interest of justice that the district court, and possibly
the magistrate judge, reexamine this matter by focusing only on
equitable estoppel in light of the entirety of the evidence
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submitted by Purcell in opposition to the summary judgment motion.
Although this is a question of law, and we could decide it
ourselves, we prefer for the district court to consider it in the
first instance, to review the summary judgment evidence in light of
the foregoing considerations. We do not mean to suggest what
result the district court should ultimately reach on this pre-
liminary question of whether Purcell initiated his action in a
timely fashion.
Accordingly, the judgment is VACATED, and this matter is
REMANDED for further proceedings, as appropriate.
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