Alvin Dorsey v. Pinnacle Automation

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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Nos. 00-3558/01-1030
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Alvin Dorsey, Jr.; James Greer; George *
Lewis; Cecil Isaac; William Blue; *
Vernon Gossett; Richard Camillo *
*
Appellants, *
* Appeals from the United States
v. * District Court for the Eastern
* District of Missouri
Pinnacle Automation Company, doing *
business as Alvey, Inc., *
*
Appellee. *
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Submitted: November 12, 2001
Filed: January 29, 2002 (Corrected 2/6/02)
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Before McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and
SMITH,1 District Judge.
___________
SMITH, District Judge.

1
The Honorable Ortrie D. Smith, United States District Judge for the
Western District of Missouri, sitting by designation.
 Alvin Dorsey and six co-plaintiffs (Appellants) appeal from the district
court's2 grant of summary judgment in favor of Pinnacle Automation Company
d/b/a Alvey, Inc. (“Alvey”) on their disparate treatment claims under the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-34 and the
Missouri Human Rights Act (“MHRA”). Appellants also appeal the district
court’s award of attorney’s fees. For the reasons discussed below, we affirm.

BACKGROUND

Appellants Alvin Dorsey, James Greer, George Lewis, Cecil Issac, William
Blue, Vernon Gossett and Richard Camillo were shop employees of Alvey and, at
the time of the challenged promotions, worked in four different departments:
Material Handling, Electrical, Fabrication, and Final Assembly. This appeal
involves seven separate promotion decisions made by Alvey between January
1996 and April 1999. Specifically, Appellants have challenged the following
promotions: (1) Bryan Young, promoted in the Material Handling department on
March 25, 1996 (2) Brenda Floerchinger, promoted in the Electrical department on
September 8, 1997, (3) Levi Johnson, promoted in the Fabrication department on
July 8, 1996, (4) Kevin Dexter, promoted in the Sub-Assembly department on
December 15, 1997, (5) Stefan Stover, promoted in the Final Assembly
department on January 29, 1996, (6) James Thorn, promoted in the Final Assembly
department on December 8, 1997, and (7) Kalman Bihary, promoted in the Final
Assembly department on April 12, 1999. Each of the above individuals was below
the age of forty at the time of their particular promotion. All of the promotions,
although in different departments, were to the position of leadperson.
Leadpersons receive approximately fifty-cents ($.50) per hour more than the
employees working under them.

2
The Honorable Stephen N. Limbaugh, United States District Court for the
Eastern District of Missouri.
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 On October 1, 1998, Appellants filed separate identical charges of
discrimination, each alleging discrimination on the basis of age in violation of the
ADEA and MHRA. Each charge stated:
I believe that I have been discriminated against on the basis of my age
(over 40) in violation of the Age Discrimination in Employmnet Act
and the Missouri Human Rights Act because younger (under 40)
second tier employees that have considerably less seniority are
consistently receiving wage increases greater than myself and all
other similarly situated first tier, more senior, over 40 employees.

Appellants later filed a complaint in the district court, alleging violations of the
ADEA and state law. On September 15, 2000, the district court granted Alvey’s
motion for summary judgment on all of the Appellants’ ADEA claims. The court
held that Appellants failed to file timely charges of discrimination with the EEOC
for many of the challenged promotions and that the claims not barred by the
statute of limitations lacked merit. The district court further held that Appellants
failed to exhaust their administrative remedies with regard to their hostile work
environment claims. Later, on November 28, 2000, the district court granted
Respondent’s motion for attorneys’ fees. Appellants appeal, contending that
summary judgment and the grant of attorneys’ fees was improper.

DISCUSSION

We review a grant of summary judgment de novo. We apply the same
standard as the district court and determine whether the record shows that no
genuine issue as to any material fact exists and that the moving party is entitled to
judgment as a matter of law. See Breeding v. Arthur J. Gallagher & Co., 164 F.3d
1151, 1156 (8th Cir. 1999); Fed .R. Civ. P. 56(c). We construe the factual record
and all reasonable inferences from the record in the light most favorable to the
party opposing summary judgment. See Hutson v. McDonnell Douglas Corp., 63
F.3d 771, 775 (8th Cir.1995).

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 I.

We agree with the district court that Appellants’ claims regarding several of
Alvey’s promotional decisions are time barred under the ADEA and MHRA. The
ADEA makes it "unlawful for an employer . . . to discharge any individual or
otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual's age."
29 U.S.C. § 623(a)(1). Protection under the ADEA extends to persons age forty
and older. 29 U.S.C. § 631. The ADEA requires the filing of an administrative
charge of discrimination with the Equal Employment Opportunity Commission
(“EEOC”) within 300 days of the act of discrimination, and the MHRA requires
filing with the Missouri Commission on Human Rights within 180 days of the
discriminatory act. 29 U.S.C. § 626(d)(2), Mo. Rev. Stat. § 213.075(1).
Appellants filed their charges of discrimination on October 1, 1998. They
challenge promotion decisions made by Alvey between January, 1996 and April,
1999. Applying the respective statutes of limitations, Plaintiff’s claims for
discriminatory acts that occurred prior to December 5, 1997 are time barred by the
ADEA and claims for discriminatory acts that occurred prior to April 4, 1998 are
time barred under the MHRA.
Appellants argue that the district court should have applied either the
doctrine of equitable tolling or equitable estoppel to the 300 day limitations period
under the ADEA. “The filing of a timely charge with the EEOC is not a
jurisdictional prerequisite to a suit in federal court.” Rather, it is a condition
precedent and, “like a statute of limitations, is subject to waiver, estoppel, and
equitable tolling.” Zipes v. Trans World Airlines, 455 U.S. 385, 393 (1982).
This Court recently differentiated between the concepts of equitable estoppel and
equitable tolling in Dring v. McDonnell Douglas Corp., 58 F.3d 1323, 1327-28
(8th Cir.1995).
The doctrine of equitable estoppel comes into play when “the employee’s
failure to file in a timely fashion is the consequence of either a deliberate design

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by the employer or of actions that the employer should unmistakably have
understood would cause the employee to delay filing his charge.” Dring, 58 F.3d
at 1329 (quoting Kriegesmann v. Barry-Wehmiller Co., 739 F.2d 357, 358-59 (8th
Cir. 1984)). The doctrine of equitable estoppel is invoked when a plaintiff is
aware of his ADEA cause of action, but is “lulled or tricked into letting the EEOC
filing deadline pass because of some employer misconduct.” Dring, 58 F.3d at
1329. Outside of Appellants’ contention that Alvey failed to communicate the
leadperson promotions, they have presented no evidence of wrongdoing or
misconduct on the part of Alvey. Moreover, to successfully apply the doctrine of
equitable estoppel, Appellants must have been aware of a possible ADEA
violation. Here, Appellants argue that they were not aware of a possible ADEA
violation because Alvey failed to communicate the promotions and they were not
aware that they had been passed over for promotion until well within the
limitations period. Since Appellants did not know of Alvey’s possible ADEA
violation, it is impossible that they were “lulled” or “tricked” into not pursuing
their rights. Equitable estoppel is not a proper basis for tolling the statute of
limitations.
The doctrine of equitable tolling is appropriately applied “when the
plaintiff, despite all due diligence, is unable to obtain vital information bearing on
the existence of his claim.” Id. at 1328 (quoting Chakonas v. City of Chicago, 42
F.3d 1132, 1135 (7th Cir. 1994)). When applying this doctrine, a court must
determine “whether a reasonable person in the plaintiff’s position would have
been aware” of promotions to leadperson. Dring, 58 F.3d 1329. Appellants argue
that they did not know of the promotions because the leadperson promotions and
position openings were never posted or otherwise communicated to them and the
challenged lead persons’ job duties were never changed to demonstrate that they
had been promoted. However, Appellants have stated in their affidavits that they
heard rumors that younger people were promoted to leadperson, but still took no
action. If Appellants had suspicions they should have exercised due diligence, in
which case they would have easily confirmed the promotions. Likewise, in some

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cases, Appellants were aware that certain positions of leadperson had been vacant
for a significant period of time, yet they did not inquire whether the opening had
been filled. Again, Appellants should have asked whether the position had been
filled and by whom. In this case, a reasonable person in Appellants’ positions
would have been aware of the promotions.
We hold therefore that Appellants’ charges of discrimination are not subject
to equitable estoppel or equitable tolling and the statute of limitations began to run
as of the date of the promotions. Appellants are not entitled to relief for any
employment decisions made before December 5, 1997 as they are barred by the
300-day statute of limitations under the ADEA, nor any claims before April 4,
1998 which are barred by the MHRA. Thus, Appellants claims as to the
promotions of Stover, Johnson, Young and Floerchinger under ADEA are time
barred. Likewise, Appellants’ claims regarding the promotions of Stover,
Johnson, Young, Floerchinger, Thorn and Dexter are time barred under MHRA.
Remaining are the ADEA claims challenging the promotions of Thorn, Dexter and
Bihary and the MHRA claim challenging the promotion of Bihary.
As to Appellants’ timely claims, they have failed to show that Alvey’s
reason for not promoting them was pretextual or created a reasonable inference
that age was a determinative factor in Alvey’s employment decision. Appellants
have the burden of establishing a prima facie case of age discrimination for
Alvey’s failure to promote under the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). Under this framework, a
plaintiff must establish a prima facie case of discrimination by showing (1) he was
a member of the protected age group; (2) he was performing his job at a level that
met his employer's legitimate expectations; (3) he was not promoted; and (4) he
was replaced by a younger person. Fisher v. Pharmacia & Upjohn, 225 F.3d 915,
919 (8th Cir. 2000). If the plaintiff can make out a prima facie case, the burden
shifts to the defendant to articulate a legitimate reason for the adverse employment
action. Id. If the defendant puts forth such a reason, the plaintiff must then
present sufficient evidence to (1) raise a question of fact as to whether defendant's

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proffered reason was pretextual and (2) create a reasonable inference that age was
a determinative factor in the decision not to promote him. Id. We apply this
analysis to Appellants’ Missouri Human Rights Act age discrimination claims as
well as their federal claims. Denesha v. Farmers Ins. Exchange, 161 F.3d 491, 497
(8th Cir. 1998).
We agree with the district court that Appellants have established a prima
facie case of discrimination. Likewise, Alvey has advanced legitimate reasons for
its decision not to promote Appellants. The Court will now determine whether
Alvey’s proffered legitimate reasons for its promotional decisions were pretextual.
James Thorn’s promotion is challenged by Appellants Dorsey, Isaac and
Blue. Thorn was promoted to leadperson in the Prepare-to-Ship Cell of the Final
Assembly Department by Charles Crawford, Final Assembly Supervisor.
Crawford stated in his affidavit that he did not consider Dorsey or Blue for the
leadperson position because they did not work in the Prepare-to-Ship Cell. He
further explained that he did not consider Isaac for the position because he did not
show “Thorn’s initiative and, at best, he is an average employee.” Although
Appellants have provided affidavits by other employees stating that, in fact,
Thorn was less qualified for the position than Isaac, Dorsey or Blue, they have
provided nothing to demonstrate that Crawford’s decision was anything more than
misguided. Courts do not sit as super-personnel departments to second-guess the
business decisions of employers. Wiling v. County of Ramsey, 153 F.3d 869, 873
(8th Cir. 1998). The threshold question when considering pretext is whether
Alvey’s reasons for its employment actions are true, not if they are wise, fair or
correct. Id. Here, Appellants have presented no evidence to show that Crawford’s
proffered reasoning was not the true motivation behind his decision or that his true
reason for not promoting Dorsey, Isaac or Blue was discriminatory. Appellants
cannot survive summary judgment upon such a limited showing.
The next challenged promotion occurred on December 15, 1997 when
Kevin Dexter was promoted to the first-shift leadperson in the Sub-Assembly
Department. Dexter’s promotion is challenged only by Isaac. During her

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deposition, Manager Sharon Ferrell testified that, although she was not sure who
actually told Dexter that he was being promoted she and Supervisor Dave
Moynihan jointly made the decision to promote Dexter. Ferrell indicated that she
chose to promote Dexter based on Moynihan’s recommendation and her belief that
he was an “extremely good” employee. Again, Appellants have presented no
evidence to show that Ferrell’s articulated reasons for promoting Dexter are not
true. Appellants argue that Ferrell was not familiar with Dexter’s performance and
was not qualified to select the leadperson, but the fact that she may not have been
the best person to make the promotion decision does not cause the Court to
question the veracity of her proffered reason for Dexter’s promotion. Moreover,
Appellants’ argument overlooks the fact that Ferrell sought input from persons
before making a decision.
Finally, Kalman Bihary was promoted to leadperson on second shift in the
final Assembly Department on April 12, 1999. Bihary’s promotion is challenged
by Appellants Dorsey, Isaac and Blue. Sharon Ferrell promoted Bihary and stated
that she did so because he had an engineering degree, was an excellent worker and
was highly recommended by the resigning second-shift supervisor. She also
indicated that she did not consider Dorsey, Isaac or Blue because they did not
work on the second shift. Appellants contend that Ferrell’s articulated reason is
pretextual because Alvey has easily transferred employees between shifts in order
to facilitate their promotion to leadperson. However, when considering pretext,
the question is not whether her decision to consider only second-shift employees
was misguided, but rather whether her articulated reason is untrue and a pretext for
discrimination. Here, the fact that Ferrell could have and in the past did consider
first shift employees for promotion to the second shift is not enough to
demonstrate that her decision to promote only from within the second shift
employees is a pretext for discrimination.
Appellants also refer to a 1995 meeting as evidence of pretext. This
meeting was led by former supervisor Scott Johnson and Human Resources
employees Chris Devine and Steve Isenhower. Although approximately ten

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employees were at the meeting, the only Appellants who attended were Isaac and
Camillo. Isaac and Camillo’s versions of what was said at the meeting differ
slightly, but both agree that Chris Devine told them that the company was being
run like it was stuck in the 40s and that she was going to bring them at least to the
70s. Isaac also states that Devine called them a “bunch of old heads” and that they
were the “old bunch.” However, as far as the challenged Thorn, Dexter and
Bihary promotions are concerned, none of the individuals leading the 1995
meeting were responsible for or involved in making the challenged promotion
decisions. The 1995 meeting is not enough to establish pretext with respect to the
Thorn, Dexter and Bihary promotions.

II.

Appellants also argue that the district court improperly dismissed their claim
that the promotions of younger persons created a hostile workplace. Before
proceeding with a claim of hostile workplace discrimination, a plaintiff must first
exhaust his administrative remedies by filing a charge of discrimination with the
Equal Employment Opportunity Commission. Appellants have failed to exhaust
their administrative remedies; thus, their claim for hostile workplace
discrimination is denied.
A plaintiff “may seek relief for any discrimination that grows out of or is
like or reasonably related to the substance of the allegations in the administrative
charge.” Nichols, 154 F.3d at 886-87. To determine whether an allegedly
discriminatory action falls within the scope of a claim, the administrative
complaint must be construed liberally in order to further the remedial purposes of
applicable legislation. Cobb v. Stringer, 850 F.2d 356, 359 (8th Cir.1988).
“Allowing a complaint to encompass allegations outside the ambit of the predicate
EEOC charge would circumscribe the EEOC's investigatory and conciliatory role,
as well as deprive the charged party of notice of the charge, as surely as would an

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initial failure to file a timely EEOC charge.” Williams v. Little Rock Mun. Water
Works, 21 F.3d 218, 223 (8th Cir.1994) (quotations omitted). Therefore, “[t]he
breadth of the civil suit is . . . as broad as the scope of any investigation that
reasonably could have been expected to result from the initial charge of
discrimination.” Stuart v. General Motors 217 F.3d 621, 630-31 (8th Cir. 2000).
In this case, Appellants’ claims for age discrimination based on the failure
to promote presented in their charge of discrimination is not broad enough to
encompass hostile work environment claims. See Tart v. Hill Behan Lumber Co.,
31 F.3d 668, 671 (8th Cir. 1994) (holding that harassment claims were not like or
reasonably related to plaintiff’s discriminatory discharge claim alleged in the
charge of discrimination). Here, the decisions not to promote Appellants was a
discrete event completed at the time of the promotions. On the other hand, “a
claim of racial harassment in the workplace focuses on the pervasiveness of the
racially discriminatory conduct and also the employer's possible knowledge of that
conduct and failure to take remedial action.” Id. at 672. The promotions are not
like or reasonably related to Appellants allegations of the harassment that occurred
throughout their employment. The district court properly granted summary
judgment on Appellants’ claims for harassment.

III.

Finally, Appellants appeal the district court’s order dated November 28,
2000 granting in part Respondent’s motion for attorneys’ fees and costs and
finding that Eric Nettles’ and Tony Williams’ claims of discrimination were
frivolous and brought in bad faith. In its order, the district court generally
concluded that Appellants’ claims were not frivolous and thus not subject to an
award of attorneys’ fees. The district court then specifically excepted the claims
of Williams and Nettles from its prior holding when it stated, “ [t]he Court,
however, does find that claims brought by Williams and Nettles were both
frivolous and brought in bad faith” and ordered Appellants to pay Defendant for

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attorney’s fees incurred by defendant in its defense of Williams’ and Nettles’
frivolous claims. Although the district court generally orders “Plaintiffs to pay
Defendant,” the court does not require all Appellants to pay the fees. The court’s
general reference to “Plaintiffs” is limited to Williams and Nettles.
Appellants Dorsey, Greer, Blue, Issac, Camillo, Gossett and Lewis appeal
this order awarding attorneys’ fees. Williams and Nettles do not join in this
appeal. The language of the district court’s order limits the award of attorneys
fees to the claims of Williams and Nettles - and only Williams and Nettles have
standing to dispute this award. Here, Appellants are attempting to appeal an order
that does not apply to them. On this basis, we affirm the district court’s award of
attorneys’ fees.

CONCLUSION

Based upon the foregoing discussion, we affirm the judgment of the district
court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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