Pamela Sue Jones v. Dillard's, Inc.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 30, 2003
THOMAS K. KAHN
No. 02-14145 CLERK
_______________________
D. C. Docket Nos. 00-3646 CV-N-W
& 00-03647-CV-N-W

PAMELA SUE JONES,

Plaintiff,

versus

DILLARD’S, INC.,

Defendant.

SARAH CROCKER, LANA
HOUSE, JAMES THOMPSON,
DEBORAH T. GIBBONS,

Plaintiffs,

GERDA BYRD,

Plaintiff-Appellant,

versus

DILLARD’S, INC.,

Defendant-Appellee.
 ________________________

Appeal from the United States District Court
for the Northern District of Alabama
_________________________

(May 30, 2003)

Before DUBINA and FAY, Circuit Judges, and DOWD*, District Judge.

DOWD, District Judge:

The above-captioned appeal from the Northern District of Alabama involves

the discrimination claims asserted by Plaintiff-Appellant Gerda Byrd. Byrd was

one of six plaintiffs who alleged that Defendant-Appellee Dillard’s, Inc., took

some adverse action against them in their jobs because of their age. Byrd’s claims

are grounded in the federal Age Discrimination in Employment Act, the Alabama

Age Discrimination in Employment Act, and Alabama statutory fraud. The district

court granted Dillard’s motion for summary judgment as to all defendants on all

claims. Byrd was the only plaintiff to appeal; thus, only her claims are at issue.

*
Honorable David D. Dowd, Jr., United States District Judge for the Northern District of
Ohio, sitting by designation.

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 I. BACKGROUND

Plaintiff-Appellant Gerda Byrd began working for Gayfer’s Department

Store in Tuscaloosa, Alabama, in 1975. In August 1998, Dillard’s, Inc.

(“Dillard’s” or the “Company”), purchased the Tuscaloosa store, but continued to

employ its existing workforce. For the five years preceding the buyout, Byrd held

the position of office and credit manager. Dillard’s offered no such position

within its organizational structure, but placed her in an assistant area sales

manager (“AASM”) position in order to keep her at the same rate of pay. Shortly

thereafter, however, Byrd learned from Richard Lucas, also an AASM, that the

store was eliminating AASM positions and that the store had no intention of ever

employing AASMs again.

In May 1999, as part of its restructuring, Dillard’s offered Byrd an

opportunity to sell cosmetics on the sales floor. She declined, however, because

she saw lagging store sales as a bad sign for commissions in that department.

Moreover, Byrd feared that she would eventually be terminated for failing to reach

sales-per-hour (“SPH”) goals. Rather than risk termination, Byrd considered her

other options. As a manager with her position being eliminated, she was entitled

to fill another managerial position in the store or take severance pay. She opted

3
for the latter. Dillard’s approved her severance request in May 1999, and she left

in the same month. In all, Byrd received forty-seven weeks of severance pay.

On June 8, 1999, Byrd spoke to Andy Poole, operations manager at

Dillard’s, who told her that the company instructed him to hire two new AASMs.

(Byrd Dep. Tr. at 55, Ex. 2 at 5 (D. Ct. Doc. No. 15).) Byrd recorded her reaction

to this news in some typewritten notes:

This happens after I was told [that] the store could not afford any
AASM[]s ... because they were not making their figures. Seems to
me [that] I was lied to!!! As soon as I find out there are two new
AASM[s] in place[,] I will file a lawsuit against Dillard[’]s. This
lawsuit will be for [a]ge discrimination and [w]age discrimination.
Seems to me [that] they wanted to get rid of me ... by demoting me to
the floor, and[,] after several paycuts [] because I could not meet my
SPH[,] fire me.

(Byrd Dep. Tr. at 45, Ex. 2 at 5.)

In September 1999, Tiffany Winters applied for an AASM position at the

Tuscaloosa store, and was hired a month later. Byrd testified that she heard Poole

say that Winters was “young and pretty,” and that he “had to hire her.” (Byrd Dep.

Tr. at 67, 70.)

At the time Byrd left the company, she was only aware of poor sales as the

Company’s reason for eliminating the AASM position. She admitted having no

evidence that the store manager knew at the time that the position would be

4
reinstated later that year. Byrd testified that, despite the lack of evidence, she felt

certain someone in the company knew her former position was not really

eliminated because Winters was hired in that position so soon after she left.

II. PROCEDURAL POSTURE

Byrd filed her administrative charge with the Equal Employment

Opportunity Commission (“EEOC”) on February 24, 2000. In December 2000,

Byrd and the other plaintiffs filed a complaint in federal court, alleging claims

under the federal Age Discrimination in Employment Act (“ADEA”), the Alabama

Age Discrimination in Employment Act (“AADEA”), and an Alabama fraud

statute.

Dillard’s filed a motion for summary judgment as to the claims of Byrd and

the other plaintiffs. The Company argued that Byrd’s claim was time-barred

because Byrd failed to file her EEOC charge within 180 days of any alleged act of

discrimination. Dillard’s argued that her state discrimination claim was also time-

barred because the AADEA simply adopted the ADEA’s limitations period.

Alternatively, it argued that Byrd had no direct or circumstantial evidence of age

discrimination, which required judgment in its favor on the merits. With respect to

Byrd’s fraud claim, Dillard’s argued in its motion that no evidence showed it made

a false representation to her, but that only another store employee indicated that

5
the AASM position was being permanently eliminated. Further, she did not

actually rely on any such statements, that any reliance was unreasonable, that she

had no evidence of an intent to deceive, and that she did not suffer cognizable

damages.

The district court granted the Company’s motion for summary judgment as

to all of Byrd’s claims. It found that Byrd had reason to believe she had suffered

age discrimination before the 180 days preceding her EEOC charge. Specifically,

the district court found that her pre-resignation discussions with co-workers and

her June 8, 1999, discovery of the reinstatement of the AASM position were

sufficient to start the running of the statute of limitations. In addition, the court

found that the AADEA’s statute of limitations was, at most, 180 days because the

language of the statute mirrored that of the ADEA. Thus, the court held that

Byrd’s AADEA claim was also time-barred. Finally, the district court found that

there was no evidence the Company’s allegedly false statement caused her any

injury. Instead, the court found that Byrd resigned because she was being

transferred to cosmetics and did not want to work in that department, not because

of the elimination of the AASM position.

The court also denied Byrd’s motion to alter or amend its judgment. (Order

dated June 25, 2002, at 3 (D. Ct. Doc. No. 31).)

6
 III. ANALYSIS

The Court reviews de novo a lower court’s decision to grant summary

judgment. Pennington v. City of Huntsville, 261 F.3d 1262, 1265 (11th Cir.

2001); Patrick v. Floyd Med. Ctr., 201 F.3d 1313, 1315 (11th Cir. 2000). A

district court’s entry of summary judgment should be affirmed if, after construing

the evidence in a light most favorable to the non-movant, the reviewing court finds

that no genuine issue of material fact exists and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c); William Penn Life Ins. Co. of

New York v. Sands, 912 F.2d 1359, 1361 (11th Cir. 1990).

We now turn to examine the district court’s rulings on each of Byrd’s claims

under this legal standard. As discussed herein, we reverse on the ADEA claim,

certify a question to the Alabama Supreme Court on the AADEA claim, and affirm

on the fraud claim.

A. The ADEA Claim

The period in which a person must file a complaint with the EEOC depends

on whether a state is a “deferral state” under the ADEA. Deferral states are those

that have a state agency equivalent to the EEOC. See 29 U.S.C. §§ 626(d), 633

(1999); see also American Airlines, Inc. v. Cardoza-Rodriguez, 133 F.3d 111 (1st

Cir. 1998); Rhodes v. Guiberson Oil Tools Div., 927 F.2d 876, 878 (5th Cir.

7
1991). In these states, a person must file an age discrimination claim with the

EEOC within 300 days after the alleged unlawful practice occurred. 29 U.S.C. §

626(d)(2). In states without a state equivalent to the EEOC, the ADEA requires a

charge to be filed within 180 days. 29 U.S.C. § 626(d)(1). Alabama has a state

discrimination statute, the AADEA, but does not have an EEOC equivalent. Thus,

the Court examines the timeliness of Byrd’s ADEA claim in the context of the

180-day rule. The parties do not dispute that the applicable charging period is 180

days.

What the parties dispute, however, is when that period starts to run. The

proper focus for when a statute of limitations begins to run is the time of the

discriminatory act. Chardon v. Fernandez, 454 U.S. 6, 8 (1981); Nance v.

Maxwell Fed. Credit Union, 186 F.3d 1338, 1341 (11th Cir. 1999). Three possible

dates can be construed as the unlawful practice that triggered the limitations

period: (1) April or May 1999, when Byrd was told that her position was being

eliminated; (2) June 12, 1999, when she took notes about her discovery of two

new AASMs to be hired and her plans to sue for age discrimination; or (3)

November 1, 1999, when she learned that a 28-year-old woman had been hired to

fill her former AASM position.

8
 Byrd argues in support of the third date. She says that, at the time her

position was eliminated, she was only aware of purported financial reasons for the

elimination of her job. Byrd asserts that she could not file a complaint until she

became aware of the Company’s discriminatory intent. On this date, she learned

from Poole that Winters had been hired in her place. Thus, Byrd contends, the

limitations period did not begin to run until November 1, 1999, bringing her

EEOC charge filed on February 24, 2000, within the limitations period.

Alternatively, Byrd argues that, even if the Company’s discriminatory act

occurred earlier, the limitation period should be equitably tolled based on the

evidence that was available to her. Relying on Sturniolo v. Sheaffer, Eaton, Inc.,

15 F.3d 1023 (11th Cir. 1994), Byrd stresses that mere suspicion of age

discrimination, absent personal knowledge of discrimination, will not constitute

pretext. She says that, like the plaintiff in Sturniolo, she did not know she was a

victim of discrimination until she confirmed that Dillard’s had hired a younger

person to fill her former position. Because she could not have based a claim on

rumor, she needed to wait until she knew that discrimination occurred. Thus, she

argues, summary judgment was improper as to her ADEA claim.

Dillard’s argues in support of the second date, or when she took notes about

her suspicions of age discrimination. Her notes are dated June 12, 1999, in which

9
she described hearing from Poole that two AASMs were to be hired. Dillard’s

also asserts that, unlike Sturniolo, where the plaintiff had no reason to doubt the

employer’s explanation for several months, Byrd had cause to doubt the reasons

given for her transfer to cosmetics long before the 180 days leading to her EEOC

charge.

Reviewing the case law in this area, we observe that some employers will

seek to avoid liability by observing the letter of the law, while truly ignoring its

spirit. See Kolstad v. Am. Dental Assoc., 527 U.S. 526, 551 (1999) (“An

employer[] may, for example, express hostility toward employment discrimination

laws or conceal evidence regarding its “true” selection procedures because it

knows they violate federal law.”); see also Rollins v. TechSouth, Inc., 833 F.2d

1525, 1528 (11th Cir. 1987) (noting that direct evidence of discrimination is rarely

available to the plaintiff, which, presumably, is because malicious employers

disguise their conduct). The malicious employer can attempt to circumvent ADEA

liability by timing its discriminatory acts. Firing an employee for “financial”

reasons, concealing the true motivation (i.e., age), and then replacing that

employee with someone outside of the protected class six months later is all that

may be necessary to discriminate illegally, yet escape liability. If the employee

acts on a mere suspicion, he has acted prematurely: the employee’s claim will

10
likely fail because the truly damning evidence has not yet emerged–and will not

emerge given the defendant’s revelation of the suit. If, on the other hand, the

employee lies in wait for the surfacing of telltale evidence, i.e., the hiring of a

younger employee, the cunning employer will escape liability by postponing the

hiring of a replacement for at least six months. Thus, an employee thrust into this

situation faces two equally unattractive options, neither furthering the ADEA’s

purpose.

Disputes of this sort can be traced back as early as 1975 in the case of Reeb

v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975).1 In Reeb,

the defendant-employer wrote a letter to the plaintiff-employee indicating that her

monthly contract of employment would not be renewed for financial reasons. The

letter also indicated that she would be terminated effective immediately. The

plaintiff’s position was refilled only two months later, but she did not learn this

until several months later. The district court dismissed the case because the

plaintiff had not filed her administrative complaint within the applicable charging

period.2

1
This Court adopted as binding precedent all decisions of the former Fifth Circuit
handed down prior to October 1, 1981, Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc), which would include Reeb.
2
The applicable charging period required an administrative complaint to be filed within
90 days.

11
 The plaintiff prevailed on appeal. In a pronouncement that would be

echoed by various circuits across the country, the Fifth Circuit held that, under

equitable modification, the applicable limitations period did not begin to run “until

the facts which would support a cause of action are apparent or should be apparent

to a person with a reasonably prudent regard for his [or her] rights,” id. at 930.

See, e.g., Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1389 (3d

Cir. 1994); Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1531-32

(11th Cir. 1992); Vaught v. R.R. Donnelley & Sons Co., 745 F.2d 407, 410-12

(7th Cir. 1984); Wilkerson v. Siegfried Ins. Agency, Inc., 683 F.2d 344, 345-46

(10th Cir. 1982).

The effect of Reeb was to close the loophole used by the malicious

employer to avoid age discrimination liability. “[W]here wrongful concealment of

facts is alleged, ... a party responsible for such wrongful concealment is estopped

from asserting the statute of limitations as a defense.” Reeb, 516 F.2d at 930.

“‘[N]o [person] may take advantage of his [or her] own wrong.” Id. (quoting Glus

v. Brooklyn E. Dist. Terminal, 359 U.S. 231, 232-33 (1959)). These equitable

considerations have been repeated numerous times in subsequent decisions of

several courts. See, e.g., Oshiver, 38 F.3d at 1388-89; English v. Pabst Brewing

Co., 828 F.2d 1047, 1049 (4th Cir. 1987).

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 Building on Reeb is the case of Sturniolo, where the plaintiff-employee was

a sales manager who was fired as part of, he was told, a reorganization and

consolidation of positions in the company. The plaintiff discovered, however, that

the company replaced him within three months with a significantly younger

employee. The district court, refusing to apply any equitable modification,

granted summary judgment to the employer for the plaintiff’s failure to bring a

charge to the EEOC within 180 days of his termination.

This Court reversed, holding that a genuine issue of material fact precluded

summary judgment on whether equitable modification applied. Id. at 1025-26. To

reach its decision, the Court looked to the elements of a prima facie case for age

discrimination, id. at 1025,3 and made the following observations about the

evidence: “At the time of his discharge, [the plaintiff] believed [his employer’s]

reasons for terminating him were business related and [he] was not aware of the

[company’s] intent to hire a younger individual to replace him.” Id. The plaintiff

was told that the region he managed was being consolidated as part of another

region. Id. at 1026. Although the evidence suggested that the plaintiff

3
The elements it looked to were: “the plaintiff is in the protected group; (2) the plaintiff
applied and was qualified for a job for which the employer was seeking applicants; (3) the
plaintiff was rejected or demoted; and (4) following the plaintiff’s discharge, the employer
replaced him with someone of comparable qualifications outside the protected class.” Sturniolo,
15 F.3d at 1025.

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“suspected” age discrimination at the time of his discharge, “a discharged

employee’s mere suspicion of age discrimination, unsupported by personal

knowledge of discrimination, will not constitute pretext.” Id. It was not until

several months later that the plaintiff learned of his younger replacement. Id.

“[A]t that point[,] [the plaintiff] had knowledge of facts sufficient to support a

prima facie case of age discrimination.” Id.

In light of the teachings of Sturniolo and the other cases we have cited, we

examine the evidence in the instant case. First, Byrd testified at her deposition

that she learned the AASM positions were being discontinued for financial

reasons. (Byrd Dep. Tr. at 13, 22-23.) Indeed, she had seen company

documentation indicating that store sales were low. (Byrd Dep. Tr. at 76.) Byrd

also testified that she was apprehensive about taking a cosmetics job because of

her concern for meeting sales goals in light of overall store sales. (Byrd Dep. Tr.

at 12.) This evidence suggests that the reason given by Dillard’s for the

elimination of Byrd’s position not only appeared business-related, but also

believable. A person with reasonably prudent regard for her rights would not

suspect a cause of action for age discrimination at this point.

Second, Byrd testified that, on June 8, 1999, the operations manager told her

he would be hiring two new AASMs. (Byrd Dep. Tr. at 55-57.) This prompted

14
Byrd to take notes about her budding suspicions and intent to file suit once her

former position was filled by a younger employee. (Byrd Dep. Tr. at 45-46.) At

this point, the evidence available to Byrd is thin. She has no evidence of the

Company’s intent to hire a younger employee. About all she knows is that the

AASM position is being reinstated contrary to what she previously heard. While

Byrd has no other evidence, she suspects that her job was eliminated because of

her age. Nevertheless, Sturniolo teaches that Byrd’s suspicion, without more, is

insufficient to establish pretext. Not until November 1999 is her suspicion

confirmed by the hiring of Winters. At this time, she has sufficient evidence to

support her age discrimination claim.

Again, the proper focus for when a statute of limitations begins to run is the

time of the discriminatory act. Chardon, 454 U.S. at 8; Nance, 186 F.3d at 1341.

This rule would suggest that, among the three above dates, the first choice, April

or May 1999, was the appropriate starting date of the limitations period for Byrd’s

claims. The Court finds, however, that this case bears sufficient similarity to

Sturniolo to apply equitable tolling. As such, the charging period did not begin

until Byrd learned of the Company’s hiring of Winters, or November 1, 1999.

Moreover, cases decided by this Court after Sturniolo suggest that

November 1, 1999, is the correct starting date. In Hargett v. Valley Federal

15
Savings Bank, 60 F.3d 754 (11th Cir. 1995), the plaintiff-employee worked as a

probationary employee for the defendant-bank for just over five months, from June

1990 to November 1990. Then, the defendant discharged plaintiff, citing market

conditions as its reason. In early 1991, however, during a visit to the bank, the

plaintiff learned of a younger employee purporting to perform his former duties.

On November 15, 1991, the plaintiff filed an EEOC questionnaire, alleging that

the bank had discriminated against him on the basis of his age. On February 11,

1992, he filed a sworn charge of discrimination with the EEOC alleging, among

other things, age discrimination. On September 25, 1992, he filed suit for age

discrimination in federal district court. The court granted summary judgment to

the bank on the basis that the plaintiff’s EEOC charge was untimely.

Affirming the district court, this Court looked to the November 15, 1990,

date that was cited by the plaintiff to determine that his November 1991 EEOC

questionnaire and February 1992 EEOC charge were filed outside the 180-day

charging period. Id. at 760-61. “A plaintiff, who is aware that he is being

replaced in a position, which he believes he is able to perform, by a person outside

the protected age group, knows enough to support filing a claim.” Id. As

liberally as the Court could construe the filing date of plaintiff’s charge, his

excessive delay, which exceeded the applicable limitations period, was

16
unmistakable. As a consequence, this Court upheld the district court’s

characterization of the plaintiff’s age discrimination claim as untimely.

In another case, Turlington v. Atlanta Gas Light Co., 135 F.3d 1428 (11th

Cir. 1998), the plaintiff was a longstanding employee of the defendant,

accumulating almost thirty years of service at the time he left the defendant-utility

company. In February 1990, he was demoted for failing to demonstrate job

improvement during the prior year. The plaintiff presented evidence that,

beginning at the time of his demotion, the utility denied him the same training

offered to his younger colleagues. He was told that he was incapable of learning

new skills. By July 1993, he had accumulated four consecutive annual reviews

that rated his performance “below acceptable.” He was transferred to another

department. The plaintiff then obtained counsel, who prepared a written protest

against the transfer, but did not yet file an administrative charge. Then, on

October 12, 1994, the utility informed the plaintiff that he would not be considered

for a position for which he recently applied.

On December 16, 1994, the plaintiff filed a charge with the EEOC, and

subsequently filed suit in federal court. The utility filed for summary judgment,

arguing among other things that the plaintiff’s claims were untimely. The district

court agreed, and granted summary judgment to the utility. The plaintiff appealed,

17
but only as to his ADEA claim for the October 1994 denial of another position.

He contended that the decision to turn him down was based on poor evaluations,

which, in turn, were based on the utility’s improper denial of training.

This Court affirmed the decision of the district court. It held that the

utility’s allegedly discriminatory act of denying the plaintiff a new position was

time barred. Id. at 1435. The plaintiff conceded that the October 1994 denial of

the position he applied for was not discriminatory on its face, but argued that the

failure to train from February 1990 to July 1993 gave rise to the utility’s denying

him the position. A plaintiff, however, may not use time-barred evidence to help

establish a prima facie case of discrimination. Id. “[E]vidence of [the utility’s]

prior training practices cannot render discriminatory [its] facially neutral decision

to deem [the plaintiff] unqualified for the [position].” Id. Since the denial of

training occurred years ago, plainly outside the applicable statute of limitations,

the Court refused to consider it as part of the plaintiff’s claim of refusal to hire.

The panel also rejected the application of equitable tolling. Id. at 1435. The

charging period “might have been tolled if, in the period prior to the 180 days

before filing the initial EEOC charge, [the plaintiff] had no reason to believe he

was a victim of unlawful discrimination.” Id. (relying on Ross v. Buckeye

Cellulose Corp., 980 F.2d 648, 660 (11th Cir. 1993)). Seeing evidence, however,

18
that the plaintiff protested vigorously against the utility’s failure to provide equal

training opportunities, the Court refused to apply equitable tolling to preserve his

rights. Id. Thus, the limitations period barred the plaintiff’s claims.

In both Hargett and Turlington, the plaintiffs had sufficient evidence of their

age discrimination claims to file an EEOC charge within the limitations period. In

Hargett, the plaintiff learned of his younger replacement, but still waited eleven

months to complete an EEOC questionnaire and another three months before filing

an EEOC charge. In Turlington, the plaintiff had sufficient evidence of age

discrimination when he was excluded from training programs available to his

younger colleagues. His knowledge of this evidence was demonstrated by his

vigorous protest and soliciting the help of a lawyer to combat his employer’s

practices. These decisions are wholly consistent with the rationale of the early

case of Reeb: The applicable limitations period did not begin to run until the facts

supporting a cause of action became apparent or should have became apparent to a

reasonably prudent person with concern for his or her rights.

Unlike the plaintiffs in Hargett or Turlington, Byrd had only a mere

suspicion of age discrimination until Dillard’s hired Winters in her stead. Until

then, the record makes clear that she only knew her position was being eliminated,

that the Company’s reasons for the elimination seemed legitimate from what she

19
knew about store sales, and that Dillard’s had suspiciously reinstated the AASM

position in the store.

As with the plaintiff in Sturniolo, equitable tolling operates to save Byrd’s

claims. Again, with no evidence supporting a cause of action for age

discrimination until Dillard’s hired Winters, the third option is the only one

consistent with our precedent and the facts of this case. Moreover, we are

unwilling to close the door on her claims based simply on her handwritten note

that she suspected age discrimination. Accordingly, the district court erred in

granting summary judgment on Byrd’s ADEA claim.4

B. The AADEA Claim

Substantial doubt about a question of state law upon which a particular case

turns should be resolved by certifying the question to the state supreme court.

Moreno v. Nationwide Insur. Co., 105 F.3d 1358, 1360 (11th Cir. 1997) (citing

Forgione v. Dennis Pirtle Agency, Inc., 93 F.3d 758, 761 (11th Cir. 1996)).

Resolution in this way avoids the unnecessary practice of guessing the outcome

4
Dillard’s also argues that it is entitled to summary judgment on the merits of Byrd’s
ADEA claim. The district court, however, did not address that issue. Although we have the
authority to affirm an entry of summary judgment on other grounds, Robert Suris Gen.
Contractor Corp. v. New Metro. Fed Sav. & Loan Ass’n, 873 F.2d 1401, 1406 n.8 (11th Cir.
1989), we make no ruling as to the merits of Byrd’s ADEA claim, leaving that issue for the
district court to address in the first instance. See, e.g., Wilkerson, 270 F.3d at 1322; Uboh v.
Reno, 141 F.3d 1000, 1007 (11th Cir. 1998).

20
under state law and offers the state court an opportunity to explicate state law. Id.

In this case, we find sufficient cause to certify a question to the Alabama Supreme

Court with respect to the limitations period under the Alabama Age

Discrimination in Employment Act.

CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF ALABAMA

PURSUANT TO RULE 18 OF THE ALABAMA RULES OF APPELLATE

PROCEDURE.

TO THE SUPREME COURT OF ALABAMA AND THE HONORABLE

JUSTICES THEREOF:

Byrd argues that her AADEA claim is not time-barred because the

AADEA’s statute of limitations is two years and that she filed her claim within

that period. Byrd contends that the 180- and 90-day ADEA limitations periods

referred to in the Alabama statute can only be interpreted as referring to the federal

administrative requirements. Byrd also notes that at least one federal district court

has held that the AADEA’s statute of limitations is two years.5 (Appellant’s Br. at

5
We note that, since the parties have filed their briefs, another federal district court has
come up with a solution for interpreting the AADEA’s statute of limitations, Robinson v.
Regions Fin. Corp., 242 F. Supp. 2d 1070, 1076-77 (M.D. Ala. 2003). This court proposed a
variable rule, where a claim would be deemed timely if filed within the longer of (a) the time
prescribed for filing a federal ADEA claim or (b) 450 days of the discriminatory act. Id.

21
18 (citing Dooley v. AutoNation USA Corp., 218 F. Supp. 2d 1270, 1276 (N.D.

Ala. 2002).) Alternatively, Byrd argues that if this Court finds that a 180-day

limitation period should apply, the period did not begin to run until Byrd

discovered that Dillard’s hired the 28-year-old Winters, or the time period was

equitably tolled until she found out about the hiring.

Dillard’s responds that Byrd’s contention that the AADEA has a two-year

statute of limitations ignores the plain meaning of the statute. It contends that the

AADEA simply incorporates the statute of limitations of the ADEA. Dillard’s

also contends that the Alabama federal court incorrectly decided that the AADEA

had a two-year statute of limitations and refers to an Alabama state case which

held that, like the ADEA, plaintiffs have 90 days to file suit after the EEOC issues

its notice of the right to sue. (Appellee’s Br. at 23 (citing Herbst v. Raytheon Co.,

Inc., No. CV-00-485, slip. op. at 2 (Ala. Cir. Ct. Dec. 12, 2000).) Therefore,

Dillard’s contends, Byrd’s AADEA claim is time-barred because she filed her

claim outside the statute of limitations period. Byrd reiterates her assertions in her

reply brief and adds that the Alabama state case on which Dillard’s relies was

incorrectly decided.

22
 The AADEA provides in relevant part:

Any employment practice authorized by the federal Age
Discrimination in Employment Act shall also be authorized by this
article and the remedies, defenses, and statute of limitations, under
this article shall be the same as those authorized by the [ADEA]
except that a plaintiff shall not be required to pursue any
administrative action or remedy prior to filing suit under this article.

Ala. Code § 25-1-29 (1997). The Alabama Code also provides a two-year default

statute of limitations where the appropriate limitation period is not enumerated

specifically in the code. Ala. Code. § 6-2-38(l) (1984).

On its face, the AADEA provides that it has the same statute of limitations

as the ADEA. The ADEA, however, has two such limiting periods: 180 days and

90 days. Under the ADEA, a plaintiff has 180 days from the occurrence of the

allegedly unlawful practice to file a charge of age discrimination with the EEOC.

Once a plaintiff has received notice that the EEOC has dismissed the charge, she

has 90 days to file her suit. 29 U.S.C. § 626(d)(1) and (e). Thus, the ADEA’s

statutes of limitations are intertwined with its administrative requirements.

Because of how the limitations operate in the ADEA, it is difficult, if not

impossible, to transfer them to the AADEA. For example, does a plaintiff have to

file suit under the AADEA within 90 or 180 days of the allegedly unlawful

conduct, or does a plaintiff receive a combined total of 270 days to file suit? Even

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if a plaintiff were given 270 days, this would still not be the same amount of time

given a plaintiff under the ADEA because, under the ADEA, the 90 days do not

begin to run until the plaintiff has received notice from the EEOC that a claim has

been dismissed, 29 U.S.C. § 626(e); Santini v. Cleveland Clinic Florida, 232 F.3d

823, 825 (11th Cir. 2003). Alternatively, does the state default rule apply? As

shown here, we can only guess as to whether the statute of limitations precludes

Byrd’s AADEA claim.

The Alabama Supreme Court has not answered this question. The state

appellate courts offer no definitive guidance. Therefore, we certify the question to

the Alabama Supreme Court as follows: WHAT IS THE APPLICABLE

LIMITATIONS PERIOD FOR A CLAIM BROUGHT UNDER THE AADEA?

To facilitate the resolution of this question, we direct the Clerk to transmit

the entire record of this case, together with copies of the parties’ briefs, to the

Alabama Supreme Court.

C. The State-law Fraud Claim

Byrd asserts Alabama courts have consistently held that employees can

maintain actions against their former employers for fraud in connection with

acceptance, termination, or conditions of employment. Byrd alleges that Dillard’s

committed fraud when it misrepresented to her the material fact that the AASM

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position was being permanently eliminated, intending to deceive her about the

possibility of reinstating the AASM position. Byrd contends that her reliance was

reasonable because she observed a decrease in business and found plausible the

story about eliminating the position. Finally, Byrd contends that she was injured

by the Company’s misrepresentations because she resigned under the belief her

position was being eliminated and was forced to work at a significantly lower rate

of pay and suffered great emotional distress.

Dillard’s responds that it did not commit fraud because it made no material

misrepresentation to Byrd, as her position was eliminated because of budget

constraints. Dillard’s asserts that Byrd has not shown any evidence of an intent to

deceive at the time Dillard’s told her that her position was being eliminated. The

Company notes that Byrd’s reliance on its alleged misrepresentation was

unreasonable because she jumped to the conclusion that she would not be

successful in the cosmetics area, did not talk to anyone working in the cosmetics

area, and did not attempt to work in that area before resigning. Dillard’s further

asserts that Byrd suffered no damages because she made more money with the

combination of her severance and her Stein Mart pay than she would have

received in her AASM position. In her reply, Byrd reiterates her fraud claim and

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adds that the store manager told her and another employee that Dillard’s was

permanently eliminating the AASM position.

Under Alabama law, the elements of fraudulent misrepresentation are: “(1) a

misrepresentation of material fact; (2) made willfully to deceive, recklessly,

without knowledge, or mistakenly, (3) that was reasonably relied upon by the

plaintiff under the circumstances, and (4) that caused damage as a proximate

consequence.” Brushwitz v. Ezell, 757 So. 2d 423, 429 (Ala. 2000); Ala. Code §

6-5-101 (1975).

Even construing the evidence in a light most favorable to Byrd, the district

court correctly granted summary judgment on her fraud claim because she did not

meet all of the required elements. Specifically, as the district court pointed out,

Byrd did not present evidence that provided any genuine issue of material fact as

to the fourth prong of the fraud claim, i.e., that damage was caused as a proximate

consequence of the alleged misrepresentation. Byrd did not resign from Dillard’s

because she was told that the AASM position was being eliminated. She did not

want to work in cosmetics because she did not think that she could sell enough

products to equal her previous salary. The evidence does not support that she

made any effort to investigate whether she actually could match her previous

salary if she chose to sell cosmetics. Therefore, given the reasons for her

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resignation, her reduced income after she left Dillard’s was not a proximate

consequence of the Company’s alleged misrepresentation. Accordingly, because

Byrd cannot satisfy all the elements of a fraud claim, this Court should affirm the

district court’s dismissal of that claim.

IV. CONCLUSION

The district court erred in granting summary judgment to Dillard’s on

Byrd’s ADEA claim. Therefore, we reverse the district court on the ADEA claim,

and vacate the entry of summary judgment to Dillard’s. We delay remand,

however, until the Alabama Supreme Court has an opportunity to define the

applicable limitations period to Byrd’s claim under the AADEA. The entire

record in this case, together with copies of the briefs of the parties, shall be

transmitted herewith. Further, the district court properly granted summary

judgment to Dillard’s on Byrd’s state-law fraud claim. Therefore, we affirm the

district court’s judgment on this claim.

AFFIRMED IN PART, REVERSED AND VACATED IN PART, AND

QUESTION CERTIFIED.

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