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opinion should not be published and is not precedent except under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..
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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).
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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
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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.
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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).
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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).
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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
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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).
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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)).
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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).
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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).
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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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