Eavenson v. Amresco Inc

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 99-10299

HAROLD EAVENSON and ROBERT L. McDANIEL,

Plaintiffs-Appellants,

VERSUS

AMRESCO, INC.,

Defendant-Appellee.

***************************************

No. 99-10346

HAROLD EAVENSON and ROBERT L. McDANIEL,

Plaintiffs-Appellees,

VERSUS

AMRESCO, INC.,

Defendant-Appellant.

Appeals from the United States District Court
for the Northern District of Texas
(3:96-CV-338)

April 21, 2000

Before JOLLY and DeMOSS, Circuit Judges, and DAVID D. DOWD, JR.,*
District Judge.

DOWD, District Judge:**

*
District Judge of the Northern District of Ohio, sitting by
designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined that
(continued...)
 Before this Court are consolidated appeals of Harold Eavenson

and Robert L. McDaniel (hereafter "Plaintiffs") and their former

employer Amresco, Inc. (hereafter "Amresco"). Plaintiffs filed

suit against Amresco alleging that their employment had been

terminated in violation of the Age Discrimination in Employment Act

("ADEA"), 29 U.S.C. §§ 621-634. Amresco filed two motions for

summary judgment which were both denied. Two and one half years

after the case had commenced, it was reassigned to the docket of a

newly-appointed judge. Amresco sought reconsideration of the

denial of its second motion for summary judgment or, in the

alternative, it sought summary judgment for a third time.

Reconsideration was denied, but the third summary judgment motion

was granted on the ground that Plaintiffs had failed to timely file

their charges of discrimination with the Equal Employment

Opportunity Commission ("EEOC"). Judgment was then entered in

favor of Amresco, but only after the district court permitted

filing of an amended answer to conform Amresco's affirmative

defenses to the ground on which judgment was granted. Plaintiffs

sought post-judgment reconsideration and asked that the record be

reopened to permit an opportunity for discovery on the belatedly-

raised defense upon which judgment had been granted. The district

judge gave reconsideration but denied the request to reopen the

record for limited discovery.

(...continued)
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

2
 Plaintiffs filed their notice of appeal. Thereafter, Amresco

filed a separate notice of appeal with respect to the denials of

their first two summary judgment motions. The appeals were

consolidated. We now vacate summary judgment in favor of Amresco

and remand.

I

The factual background relating to the substantive ADEA claims

of Plaintiffs is, for the most part, undisputed. The case-

dispositive dispute arose over whether the EEOC charges were timely

filed. We begin by setting forth the underlying facts and

proceedings before the district court.1

Amresco was initially a division of NationsBank. Performing

under contracts, it managed assets foreclosed all over the country

by NationsBank, various other banks, the Federal Deposit Insurance

Company ("FDIC"), and the Resolution Trust Company ("RTC"). In

1993, after its sale to outside investors, Amresco became a

separate company and the former NationsBank employees became

Amresco employees. In 1994, Amresco merged with BEI, a publicly

traded company that also managed foreclosed assets and performed

other real estate related services. The merged companies continued

to operate under the Amresco name.

Because several of Amresco's major contracts were due to

expire in late 1994 and early 1995, the volume of its traditional

business was decreasing. A new CEO, Robert Lutz, was hired in June

1
We are relating in significant detail what was filed and
when, as well as what arguments were raised at various times. This
will supply the necessary context for our decision.

3
1994. A new CFO, Barry Edwards, was hired in October 1994, after

the former CFO was terminated. Rob Adair, who had previously held

the position of President at BEI, served as President of Amresco.

In the late summer of 1994, a task force was appointed to

assess the future of Amresco and to evaluate the organization and

staffing needs in light of the projected future. It was ultimately

determined that reductions in staff and reassignments were needed.

A letter dated December 13, 1994, was sent to all employees.

It stated that the workforce had already been reduced from 2000 to

800 and that "there will be a reduction in staff of approximately

45 people over the next several months in addition to the

previously stated ... reduction." Record, Vol. 2, at 279.2 It

went on to say that "[t]he employees affected have been or will be

notified promptly." Id. All parties seem to be in agreement,3

although why is unclear from the record, that this letter signaled

the termination of employment for both Plaintiffs effective January

31, 1995.4

2
Hereafter, similar references to the record shall indicate
the volume and page number as follows:"R2:279."
3
Repeatedly in the record and the briefs it has been stated
that the December 13, 1994 letter announced a reduction in force
("RIF") and that the recipient was on the list of those to be
terminated and that January 31, 1995 would be the recipient's last
day of employment. This is not really what that letter said and,
in any event, the letter contained no mention of January 31, 1995
as the termination date. Since all parties seem to be in
agreement, however, that the two Plaintiffs were on the "list" for
termination, we simply accept that general proposition as true. As
this opinion discusses, precisely when they possessed that
knowledge is an issue.
4
As just noted, it is not clear why the parties all agree that
(continued...)
4
 After their terminations, both Plaintiffs decided they had

been victims of age discrimination.5 Eavenson visited an attorney

in July 1995. He did not retain the attorney to represent him;

however, he was informed that he should file a charge of

discrimination with the EEOC. Both he and McDaniel went together

on September 15, 1995 to register their complaint with the EEOC.

McDaniel was apparently the first to be interviewed. He claims

that the EEOC agent told him he did not have a case and could not

file a charge of discrimination. McDaniel went to the waiting room

where he told Eavenson what he had learned. Eavenson left without

talking to an agent because he believed that, since his potential

claim was based on the same facts as that of McDaniel

(specifically, the "old bankers" statement overheard in the

elevator), he would also be told he could not file a charge.

(...continued)
the two Plaintiffs' employment was terminated by the December 13,
1994 letter. The letter itself is simply too general to be read in
that fashion. The Court has combed the record and can find no
place where either Plaintiff was asked point blank when he actually
found out that he was on the "list" for termination. Although both
Plaintiffs admit they received the December 13, 1994 letter, by
this Court's reading of the letter that admission has virtually no
significance. The closest thing the Court has found to suggest
that they both knew they were slated for termination is mention of
a second memo from someone in the Human Resources Department, also
dated December 13, 1994, which purportedly discussed COBRA
benefits. See, Eavenson Dep. at 41-42, R2:288; McDaniel Dep. at
36, R2:283. From this one might conclude that each Plaintiff knew
he was being terminated because he got some information about his
COBRA rights.
5
McDaniel was 50 years old and Eavenson was 56 at the time of
the RIF. Allegedly, in October 1994, McDaniel was on an elevator
with President Adair and a senior vice president, when Adair,
looking directly at McDaniel, purportedly said to the VP that they
had to "get rid of the old bankers." This formed the basis of
Plaintiffs' belief that age played a role in their terminations.

5
 In early November 1995, Eavenson had a conversation with

another attorney. He claims this was the first time he was told

that he had to file an EEOC charge before he could file a lawsuit

and that he had only 300 days in which to do so. Eavenson went

back to the EEOC the very next day, November 7, 1995, and he was

allowed to file a charge. Alerted by Eavenson of the need for

haste, McDaniel went to the EEOC on November 8, 1995 and filed his

charge.

Plaintiffs filed their complaint in the district court on

February 5, 1996, expressly alleging that they had each filed a

timely charge with the EEOC and had received their right-to-sue

letters. Amresco filed its original answer wherein it raised only

three affirmative defenses: (1) failure to state claims for which

relief could be granted; (2) that Eavenson was terminated because

his whole department was eliminated; and (3) that McDaniel was

replaced by a person older than McDaniel. In that answer, Amresco

stated that it did not have sufficient information to admit or deny

whether charges had been timely filed.

Pursuant to the district court's scheduling order, Amresco

filed its first motion for summary judgment on February 28, 1997.6

The motion did not raise the issue of timeliness but simply

attacked the Plaintiffs' claims on their merits. This motion was

denied by Order dated June 30, 1997. The district judge concluded

that a prima facie case had been established and that there were

6
Amresco actually filed two motions, one for each Plaintiff's
claims; however, for simplicity, we refer to these motions in the
singular.

6
genuine issues of material fact regarding whether Amresco included

Plaintiffs in the RIF based on their ages. A month later, Amresco

filed a motion for reconsideration of the district court's ruling,

again with no mention of timeliness. This motion was also denied.

The case was set for trial on November 17, 1997.7

On December 8, 1997, with leave of court, Amresco filed a

second round of motions for summary judgment. Once again Amresco

attacked only the merits, with no mention of the timeliness issue.

The district judge concluded that there were genuine factual

disputes precluding summary judgment. The motion was denied on

June 11, 1998, four days before the second trial date.

Once again the trial date passed and the case was rescheduled

for trial on September 14, 1998. However, on August 25, 1998, the

case was transferred to the docket of a newly-appointed district

judge. This judge ordered a joint status report. It was in this

report, filed on October 8, 1998, that Amresco raised for the very

first time that it was considering "filing [a] Motion for Summary

Judgment on a limitation issue and supplementing the Pre-Trial

Order[.]" R1:235.

7
On November 3, 1997, prior to this first scheduled trial
date, Amresco filed a motion in limine seeking to exclude any
evidence that Plaintiffs had received right-to-sue letters.
Amresco argued that receipt of such letters was of no consequence
with respect to the merits of Plaintiffs’ case because "[i]f a
charge is timely filed, the EEOC must issue all charging parties a
right-to-sue letter even if there is no determination regarding the
merits of the charge." R1:136 (emphasis added). Amresco's motion
could be read as conceding timeliness. The district court,
however, never had occasion to rule on the motion since it did not
reach the trial and rescheduled it for June 15, 1998.

7
 On November 30, 1998, the trial was once again continued to

January 4, 1999. On December 3, 1998, one month before this fourth

trial date, Amresco filed a motion seeking reconsideration of the

denial of its second summary judgment motion or, in the

alternative, a third summary judgment motion based on the issue of

the timeliness of the EEOC charges. On this latter issue, Amresco

asserted that Plaintiffs had failed to file their EEOC charges

within the statutory time limit, i.e., within 300 days of December

13, 1994. Plaintiffs objected to the filing of this motion on the

eve of trial. Thereafter, the court allowed the filing and set up

an expedited briefing schedule.8

Plaintiffs' response to this "johnny-come-lately" motion

contained their separate affidavits asserting that they had both

attempted to file charges with the EEOC on September 15, 1995 and

had been rebuffed, but that, in any event, even after December 13,

1994, they had each had good reason to believe that the employment

decision was being reconsidered by the company and that they did

not definitively know they were terminated until January 31, 1995.

Amresco made no specific reply to these latter assertions,

arguing only that the official EEOC records reflected no visit by

the Plaintiffs in September 1995 and that the Plaintiffs could not

8
While that schedule was playing out, Amresco apparently
recognized the significant factual dispute which it had belatedly
raised. It filed amended proposed jury instructions and questions,
adding two questions for the jury regarding whether each plaintiff
"was informed on or before January 1, 1995, that his employment
would be terminated." R2:320-21.

8
avail themselves of equitable tolling because they had consulted an

attorney as early as July 1995.

The district judge cancelled the trial and set the third

motion for summary judgment for argument on January 4, 1999. In a

ruling issued four days after the hearing, the district court

denied reconsideration of the second motion for summary judgment,

expressly concluding, as had the first district judge assigned to

the case, that there were genuine issues of material fact in

dispute and that a reasonable jury could find for either party.9

However, the district court then granted Amresco's third summary

judgment motion,10 with the understanding that final judgment would

be deferred for a few days to allow Amresco the opportunity to

amend its answer to include the affirmative defense upon which

summary judgment had been granted.11 This Amresco did and, on

9
We note that this was the fourth time the claims had survived
on the merits: twice on initial summary judgment motions and twice
on reconsideration motions.
10
In his Memorandum Opinion and Order of January 8, 1999, the
district judge declared that Plaintiffs' affidavits in support of
their position were conclusory, containing no more than their
subjective beliefs without any specifics as to why they held those
beliefs. He stated that "the record is devoid of any evidence that
the decision to terminate Plaintiffs on December 13, 1994 was
tentative." R2:403. He concluded that because "the deadline for
Plaintiffs to file charges with the EEOC was October 9, 1995[ ] ...
Plaintiffs filings ... were not timely." Id.
11
Although the court noted that Amresco had failed to plead the
limitations defense, in his view, since it had been raised in the
third motion for summary judgment and in a December 21, 1998 joint
pretrial order submitted to the court, Plaintiffs "were given ample
time to respond to this issue ... and [had] presented no evidence"
that they could ever defeat the limitations defense. R2:407. The
court concluded that Plaintiffs would not be prejudiced by allowing
Amresco to amend its answer to add the affirmative defense. The
(continued...)
9
January 19, 1999, the district court entered final summary judgment

in Amresco's favor, taxing costs against the Plaintiffs.

On the same day that the Judgment was entered against

Plaintiffs, they filed a motion to reopen the summary judgment

record, for reconsideration, and for discovery of the facts

surrounding the limitations defense. Plaintiffs asserted that the

district judge had improperly failed to draw all inferences in

their favor and pointed to specific deposition testimony that

created a material factual dispute. The district court then

ordered a hearing on Plaintiffs' motion, accusing Plaintiffs of

"misconstru[ing] the court's opinion" and warning them not to be

"unnecessarily dramatic." R3:511. The court ordered Plaintiffs to

put in writing the specific discovery they needed, which Plaintiffs

did.12

On March 17, 1999, the district judge denied Plaintiffs'

motion to reopen discovery and, in a reconsidered analysis of the

(...continued)
judge, therefore, ruled in Amresco's favor stating that "based on
the assumption that Defendant will file an amended answer by 5:00
p.m., January 11, 1999 as directed, the court will later enter
judgment by separate document." R2:408.
12
Plaintiffs specified that they wanted to depose Lutz and re-
depose Edwards regarding events between December 13, 1994 and
January 31, 1995, matters which had not previously been raised
because there had been no issue taken with timeliness, and that
they wanted to give Amresco the opportunity to test the facts they
had asserted in their recent affidavits regarding their beliefs
that the decision to terminate them was being reviewed during that
time frame. They also sought to do limited discovery about the
specifics of their claim that they had been rebuffed by the EEOC on
September 15, 1995.

10
summary judgment ruling,13 affirmed its previous declaration that

December 13, 1994 was the date of the adverse employment action

requiring an October 9, 1995 filing of EEOC charges. The district

court adhered to its original decision that Plaintiffs were not

entitled to equitable tolling and that their claims were time-

barred.

II

On appeal, Plaintiffs challenge the district court's ruling

on the third motion for summary judgment and assert that the court

abused its discretion by refusing to reopen the record to allow

discovery on the timeliness issue. In response, Amresco asserts

that this Court lacks jurisdiction to review the January 8, 1999

summary judgment order or the January 19, 1999 final judgment

because these matters are not specified in Plaintiffs' notice of

appeal. In its own appeal, apparently filed as a precautionary

measure, Amresco challenges the denial of the first two summary

judgment motions.

We shall first address the scope of this Court's jurisdiction,

followed by a discussion of the issues raised in Plaintiffs'

appeal, and then by a brief discussion of the issue in Amresco's

appeal.

A

13
The court specified that it had reviewed "the motion and
briefs, the response, the reply, the specification, the arguments
of counsel, the previously filed pleadings, and the applicable
authority[.]" R3:524.

11
 Plaintiffs' notice of appeal, filed on March 19, 1999, states

that they are "appealing from the judgment of the District Court

dated March 16, 1999, which denied Plaintiffs' Motion for

reconsideration, to reopen the summary judgment record and permit

further discovery, following the Courts [sic] granting of

Defendant's Motion for Summary Judgment by Order dated January 19,

1999." R3:534.14

Amresco argues that Plaintiffs' appeal can only be from the

ruling issued by the district court in March 1999, and cannot

address the Memorandum Opinion and Order of January 8, 1999, or the

Judgment of January 19, 1999. Amresco holds the view that, under

Fed. R. App. P. 3, Plaintiffs are bound by the language of their

notice of appeal. See C.A. May Marine Supply Co. v. Brunswick

Corp., 649 F.2d 1049, 1056 (5th Cir.), cert. denied, 454 U.S. 1125

(1981) (although Rule 3 is interpreted liberally, "[w]here the

appellant notices the appeal of a specified judgment only or a part

thereof ... this court has no jurisdiction to review other

judgments or issues which are not expressly referred to and which

are not impliedly intended for appeal").

Plaintiffs do not directly address Amresco's position; rather,

they characterize the actions of the district court in

reconsidering its judgment of January 19, 1999, as implicitly

setting aside that judgment. They rely on the fact that the

14
The appealed Order was signed by the district judge on March
16, 1999, but filed (and entered on the docket) on March 17, 1999.
Since a court can speak only through its record, the filing date is
the official date of the Order.

12
district court conducted a hearing on their motion to reopen the

summary judgment record and ultimately wrote a new opinion on the

limitations issue.

The Federal Rules of Civil Procedure make no provision for

"motions for reconsideration" much less for "motions to reopen."

However, such motions may be treated by a court as either a Rule

59(e) motion to alter or amend judgment or a Rule 60(b) motion for

relief from judgment. A Rule 59(e) motion must be filed no later

than ten (10) days after the entry of judgment. A Rule 60(b)

motion "shall be made within a reasonable time [but] not more than

one year after the judgment, order, or proceeding was entered or

taken." Either type of motion suspends the time for filing an

appeal until the district court rules on the motion. Fed. R. App.

4(a)(4).

Plaintiffs' Motion to Reopen the Summary Judgment Record, for

Reconsideration, and to Permit Discovery on the Issue of

Limitations was filed on the very day the Judgment was entered.

Therefore, this Court need not consider whether it was (or should

have been) treated by the district court as a Rule 59 or a Rule 60

motion.15 Either way, it is properly viewed under Fed. R. App. 4

15
The file-stamp used by the Clerk contains only the date of
filing, without the time. Therefore there is no way to determine
whether Plaintiffs' motion was actually filed before or after the
Judgment. The district court later ruled, based on the order that
the documents appeared on the docket of the Clerk, that the motion
was a post-judgment motion. We merely note that, since it is not
all that hard to manipulate the order of documents received and
manually docketed, it might be a better practice to use a file-
stamper that contained a time indicator so that documents could be
entered on the docket in both time and date order.

13
as tolling the time for filing an appeal. Once the motion was

resolved on March 17, 1999, the time for filing the notice of

appeal began to run again. Therefore, Plaintiffs' notice of appeal

filed on March 19, 1999, was timely under Fed. R. App. P. 4.

The next question relates to what was actually appealed: only

the March 17 Order or also the Order of January 8 and the Judgment

of January 19, 1999? The liberal view expressed by case law in

this circuit, including the two cases relied upon by the Amresco,

allows review of both the March Order and the January

Order/Judgment.

In C.A. May Marine Supply Co., supra, a panel of this Court

stated:

Generally a notice of appeal "shall
designate the judgment, order or part thereof
appealed from." Fed.R.App.P. 3(c) (1980).
However, a policy of liberal construction of
notices of appeal prevails in situations where
the intent to appeal an unmentioned or
mislabeled ruling is apparent and there is no
prejudice to the adverse party. Simpson v.
Norwesco, Inc., 583 F.2d 1007, 1009 n.2 (8th
Cir. 1978). The party who makes a simple
mistake in designating the judgment appealed
from does not forfeit his right of appeal
where the intent to pursue it is clear.
Kicklighter v. Nails by Jannee, Inc., 616 F.2d
734, 738-39 n.1 (5th Cir. 1980). See Hammond
v. Public Finance Corporation, 568 F.2d 1362
(5th Cir. 1978); Jones v. Chaney & James
Construction Company, 399 F.2d 84 (5th Cir.
1968); Markham v. Holt, 369 F.2d 940 (5th Cir.
1966). Also, where claims or issues are
inextricably entwined, each may be reviewed
even though not referred to in the notice of
appeal. Marshall v. Kirkland, 602 F.2d 1282,
1302 n.17 (8th Cir. 1979). See also Comfort
Trane Air Conditioning v. Trane Co., 592 F.2d
1373 (5th Cir. 1979); In re Nissan Motor
Corporation Antitrust Litigation, 552 F.2d
1088 (5th Cir. 1977). This circuit tends to

14
 be more lenient than other circuits in this
respect.

Where the appellant notices the appeal of
a specified judgment only or a part thereof,
however, this court has no jurisdiction to
review other judgments or issues which are not
expressly referred to and which are not
impliedly intended for appeal. See Elfman
Motors, Inc. v. Chrysler Corp., 567 F.2d 1252
(3d Cir. 1977); Symons v. Mueller Co., 526
F.2d 13 (10th Cir. 1975).

649 F.2d at 1056.

Plaintiffs' notice of appeal identifies the March 16, 1999

"judgment" as the order appealed from;16 however, it also makes

express reference to the judgment dated January 19, 1999. Since

the March order dealt with a motion seeking reconsideration of the

court's earlier granting of summary judgment, reference in the

notice of appeal to the earlier judgment on a January 8, 1999

opinion and order is sufficient.

Under the circumstances of this case, a liberal construction

of the law justifies our review of both the March order (which

indisputably is on appeal) and the January Order and Judgment.

Amresco is not prejudiced by such review.

B

A district court’s grant of summary judgment is reviewed de

novo, applying the same standard used by the district court.

Summary judgment is appropriate "if 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

16
See note 14, supra, regarding the date discrepancy.

15
any material fact and that the moving party is entitled to a

judgment as a matter of law." Fed. R. Civ. P. 56(c). In reviewing

the record, any factual inferences are drawn in favor of the non-

moving party. United States v. Arron, 954 F.2d 249, 251 (5th

Cir.), reh'g denied, 957 F.2d 869 (5th Cir. 1992). A summary

judgment may be reversed if the appellant shows "that a genuine

fact issue exists that is material to the outcome of the dispute."

Id. "A fact is material if it might affect the outcome of the suit

under the governing substantive law." Id.

"Control of discovery is committed to the sound discretion of

the trial court and its discovery rulings will be reversed only

where they are arbitrary or clearly unreasonable." Mayo v.

Tri-Bell Industries, Inc., 787 F.2d 1007, 1012 (5th Cir.1986);

Dukes v. South Carolina Ins. Co., 770 F.2d 545, 548-49 (5th

Cir.1985). If discovery could uncover one or more substantial fact

issues, a party is entitled to reasonable discovery to do so. See

Trevino v. Celanese Corp., 701 F.2d 397, 405 (5th Cir.), reh'g en

banc denied, 707 F.2d 515 (5th Cir. 1983). "Generally, a ruling

that denies a party an adequate opportunity to discover facts to

oppose a motion for summary judgment is unreasonable if summary

judgment is subsequently entered against that party." Williamson

v. U.S. Dept. of Agriculture, 815 F.2d 368, 382 (5th Cir. 1987).

The difficulty in this case was created largely by Amresco's

filing of "rolling" summary judgment motions. Dissatisfied with

the district court's repeated determinations against it, Amresco

kept coming up with new arguments until it finally managed to "ring

16
the bell" by raising the timeliness issue in its third motion for

summary judgment. By that time, the deadline for completing

discovery had long since passed.17 Never presented with a need to

do so, Plaintiffs had not conducted any discovery on the timeliness

issue. Therefore, the best they could do in the face of this third

motion filed on the very eve of trial was just what they did:

submit their personal affidavits attesting to the facts as they

knew them.18 Based on those facts, Plaintiffs argued that December

17
The district court's orders set the discovery deadline for
March 3, 1997. The third motion for summary judgment was filed on
December 3, 1998.
18
Eavenson's affidavit (R2:336-45) asserted the following: (1)
that he and McDaniel had gone to the EEOC office on September 15,
1995, as shown by his attached appointment calendar page for that
day; (2) that McDaniel, after first speaking to an agent, told
Eavenson the agent said they did not have a claim and there was no
need to sign any paperwork; (3) that he (Eavenson) decided it would
be futile to talk to an agent since he had the very same facts as
McDaniel, who had already been turned away by the agent; (4) that
after later learning there was a time limit for filing charges, he
returned to the EEOC, was interviewed by a different agent, and was
permitted to file a charge; (5) that he told McDaniel to go
promptly to the EEOC to file his charge; (6) that, since neither he
nor McDaniel had hired a lawyer until some time in 1996 after they
received their right to sue letters, neither one of them knew in
September of 1995 whether or not they had a legitimate age
discrimination claim; (7) that between December 13, 1994 and
January 31, 1995, he had conversations with Barry Edwards and
Robert Lutz which led him to believe that they were still
evaluating whether he should be retained with the company; (8) that
between December 13, 1994 and January 31, 1995, he was aware that
several other company officials were questioning how certain tasks
would ever be accomplished if the company closed his department;
and (9) that he was aware that, after December 13, 1994, the
company had changed its mind about the terminations of some
employees.
McDaniel's affidavit (R2:347-52) asserted the following: (1)
that he was interviewed on September 15, 1995 by a female EEOC
agent who told him that he did not have a case and that he could
not file a charge of discrimination based on what he had recounted;
(2) that he and Eavenson had decided to leave the EEOC office based
(continued...)
17
13, 1994 was not the date of the adverse employment action but

that, even if it were, they were entitled to equitable tolling of

the 300-day time limit for filing their EEOC charges for either of

two reasons: (1) because after December 13, 1994, Amresco

executives had led each Plaintiff to believe that the termination

decision with respect to each of them was not yet final, and (2)

because the Plaintiffs had been misled by an EEOC agent who, on

September 15, 1995, told them they could not file charges, an error

which Plaintiffs did not then detect until early November 1995,

when they promptly did file charges.

In a somewhat lengthy opinion filed March 17, 1999, the

district court reexamined and ultimately adhered to its earlier

decision to grant Amresco's third motion for summary judgment. In

doing so, the court relied in part on Delaware State College v.

Ricks, 449 U.S. 250 (1980), where the Supreme Court held that the

filing limitations period19 commences at the time the employment

(...continued)
on what the agent told him; (3) that, in November 1995 after
Eavenson called and told him that he needed to act quickly because
a time limit was about to run out, he went again to the EEOC and
spoke with a different agent who helped him file his charge; (4)
that in January 1995, he had conversations with Barry Edwards and
Robert Lutz which led him to believe they were reconsidering the
decision to terminate his employment; (5) that he was aware that
some people who had been selected for termination were instead
going to be retained because the company had changed its mind; and
(6) that he knew the company was planning to expand in certain
areas in which he had many years of experience, buttressing his
belief that he might not be terminated.
19
Under 29 U.S.C. § 626(d), in a deferral state such as Texas,
an age discrimination charge must be filed within 300 days after
the alleged unlawful act occurred. Failure to timely file a charge
does not necessarily prevent a party from pursuing an action in
(continued...)
18
decision has been both made and communicated to the employee. Id.

at 258. The Ricks Court recognized that determining timeliness

requires two things: (1) identification of the unlawful employment

act; and (2) identification of the date when that act occurred.

Here, the first element was not in dispute, whereas the second one

was a point of contention.

The district court declared the record "unequivocally clear"

and made the factual determination "that Defendant's management did

not alter its [December 13, 1994] decision to terminate

Plaintiffs[.]" R3:527 (emphasis added). It therefore upheld its

earlier decision that "the limitations period began to run on that

date" and found "no reason to reopen and allow any further

discovery regarding that issue." Id.

(...continued)
federal court. See Zipes v. Trans World Airlines, 455 U.S. 385,
393 (holding that "filing a timely charge of discrimination with
the EEOC is not a jurisdictional prerequisite to suit in federal
court, but a requirement that, like a statute of limitations, is
subject to waiver, estoppel, and equitable tolling.") (footnote
omitted). The burden is on the plaintiff to demonstrate a factual
basis for equitable tolling. Blumberg v. HCA Management Co., 848
F.2d 642, 644 (5th Cir. 1988), cert. denied, 488 U.S. 1007 (1989).
We have held equitable tolling to apply in the
following situations: (1) during the pendency of an
action before a state court that has jurisdiction over
the subject matter of the suit, but that is the wrong
forum under state law; (2) until the claimant knows or
should know the facts giving rise to her Title VII claim;
and (3) when the EEOC misleads the claimant about the
nature of her rights under Title VII. See Chappell v.
Emco Mach. Works Co., 601 F.2d 1295, 1302 (5th Cir.1979).
We have indicated that circumstances besides these might
merit equitable tolling. See Blumberg, 848 F.2d at
644-45.
Hood v. Sears Roebuck & Co., 168 F.3d 231, 232 (5th Cir. 1999).

19
 Plaintiffs have apparently never denied that they were told

on December 13, 1994 that their positions would be terminated. At

issue here is whether that decision, although communicated, was

actually firmly made, that is, whether it was final and understood

as final by all concerned within the meaning of Ricks. The fact

that Defendant's management ultimately did not alter its decision

to terminate Plaintiffs does not mean that there could not have

been reason for Plaintiffs to believe that the "decision" was under

reconsideration. It is possible that Defendant's management could

have engaged in behavior which engendered such a belief. If so,

equitable tolling of the time for filing EEOC charges would be in

order.20 The district court improperly denied the requested

discovery which might have clarified the facts surrounding this

issue, with the result that it misapplied the "made and

communicated" test of Ricks.21

20
There are really two ways of looking at this: either the
adverse employment decision did not occur until January 31, 1995,
which then triggered the running of the limitations period, or
although the decision occurred on December 13, 1994 and the
limitations period should have begun to run on that date, the
period was tolled by management's actions which misled Plaintiffs
into believing that the decision was not final.
21
Although the district court made its determination on the
incomplete record before it, there was still a significant amount
of evidence to suggest the error of summary judgment. For example,
the following appears in the record to support a conclusion that
there was a material factual dispute, sufficient to support the
need for some limited discovery, regarding whether Amresco's
decision to terminate the Plaintiffs was really definite on
December 13, 1994: (1) the deposition testimony of Edwards that
(a) he does recall having conversations with McDaniel after
December 13, 1994, where he expressed concern that Amresco, in its
haste, was letting too much talent like McDaniel's escape (R4:068),
and (b) he met with Eavenson several times between December 13,
(continued...)
20
 When the limitations period began to run was not the only

point of contention. Plaintiffs also asserted that the period was

subject to equitable tolling because they had been misled by the

EEOC in September 1995 and did not discover that fact until

November 1995. Materials submitted by the Plaintiffs indeed

supported both this possibility and the fact that they had not

actually obtained legal advice which would have alerted them to the

true nature of their rights.22

(...continued)
1994 and January 31, 1995 to discuss Eavenson's suggestion that,
because his department added value going forward, he and at least
one other employee from the department should be retained (R4:072);
(2) deposition testimony of Adair that although an employee by the
name of Andrus had been slated for the RIF, Edwards had changed
that decision and transferred him to another department, making him
treasurer of the company (R4:087); (3) Eavenson's affidavit that
several people in the organization were concerned about how they
would receive the services his department had offered, coupled with
his awareness that during the relevant time period Amresco was
taking no steps to provide for those services although it would
certainly need the services even if he were terminated, which led
him to believe the decision was not final (R2:339-40); and (4)
McDaniel's affidavit that (a) he had a conversation with Lutz (who
had never been deposed) during January 1995 where Lutz also
expressed concern over losing talent and left McDaniel with the
impression that his termination would be reconsidered (R2:348-49),
and (b) he was aware that Amresco planned to expand in the very
areas where he had over 30 years of expertise (R2:349). The
district court dismissed all of this evidence, stating: "Based upon
Plaintiffs' own affidavits and the deposition of a senior
management official of Defendant, [Plaintiffs] held a tenuous
belief on their part that the termination decision might be
reversed." R3:527 (emphasis in original).
22
For example, in addition to the facts attested to in
affidavits filed in support of their opposition to the third
summary judgment motion, see, note 18, supra, additional facts
contained in a subsequent affidavit (R2:424-26) filed in support of
their post-judgment motion offer further clarification. There,
Eavenson acknowledged that in July 1995 he had spoken with an
attorney who told him to go to the EEOC. However, he characterized
that discussion as "not detailed." He reiterated that he "was not
(continued...)
21
 Plaintiffs absolutely were prejudiced by a complete inability

to conduct discovery on the significant factual disputes related to

the timeliness issue. Prior to Amresco's belated third motion for

summary judgment, there had been no incentive to pursue discovery

on this issue. Under these circumstances, the district court

abused its discretion by failing to permit the limited discovery

sought by the Plaintiffs, including when the period began to run

and whether that period was equitably tolled by subsequent events.23

Accordingly, we vacate the district court's grant of Amresco's

third motion for summary judgment and we remand for further

proceedings consistent with this opinion.24

(...continued)
informed by anyone and did not know until November 1995 that the
filing of a formal Charge was a prerequisite to the filing of a
suit nor did [he] know that there was a three hundred (300) day
deadline in doing so until November 1995." R2:425. Eavenson also
acknowledged that in November 1995, after learning from "someone"
that he must file a formal charge, he contacted an attorney to
confirm that fact.
23
Perhaps Plaintiffs could have assisted the process by seeking
some limited discovery under Fed. R. Civ. P. 56(f) before the
district court actually ruled on the third motion for summary
judgment. See Exxon Corp. v. Crosby-Mississippi Resources, Ltd, 40
F.3d 1474, 1487 (5th Cir. 1995) (the party moving for a continuance
of discovery should "request extended discovery prior to the
district court's ruling on summary judgment"). However, it is
completely conceivable that Plaintiffs were trying their best to
respond to an untimely argument regarding timeliness while hoping
to preserve their January 4, 1999 trial date, the fourth date set
for the trial of a matter filed almost three years earlier. This
one strategic slip on Plaintiffs' part should not doom their
lawsuit and their legitimate post-judgment request for some
discovery.
24
We note that, in the event limited discovery reveals that
Plaintiffs hold one view of the facts and Amresco's decision-makers
hold another, this is the very stuff of trials. In that case,
there would be a genuine issue as to material facts, rendering
(continued...)
22
 C

In view of our disposition of Plaintiffs' appeal on the

question of discovery related to timeliness, we need not address

Amresco's challenge to the district court's two denials of summary

judgment. It is textbook law that this Court generally has

jurisdiction to review only final orders. 28 U.S.C. § 1291. A

denial of summary judgment does not fall into the category of a

final order. Palmer v. Johnson, 193 F.3d 346, 350 (5th Cir. 1999);

Francis v. Forest Oil Corp., 798 F.2d 147, 149 (5th Cir. 1986).

Accordingly, Amresco's appeal must be dismissed for lack of

jurisdiction.

III

For the reasons set forth above, we VACATE the district

court's grant of summary judgment to Amresco and we REMAND for

further proceedings. In addition, we DISMISS Amresco's appeal.

(...continued)
summary judgment improper. Further, our disposition today does not,
of course, rule out the possibility that it may ultimately be
decided that the EEOC charges were not timely filed.

23